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As Techdirt readers know, the copyright industry has almost no means to tackle infringement, or to demand that pirated materials are removed from Internet sites. At least, that's the impression you would get as a result of the constant whining you hear from the entertainment companies that they are doomed and terribly neglected by the lawmakers. Indeed, not content with the copyright ratchet that constantly makes copyright laws longer, stronger and broader, the film, music and publishing industries are always pushing for "voluntary" agreements with the Internet industry that don't require anything so tiresome as actual laws to be passed... or pesky things like "due process."One example of this approach is the "six strikes" scheme in the US. As Techdirt noted recently, the approach was a complete failure, and has just been dropped. Unfortunately, the idea lives on around the world -- the EFF has an entire section on its site about what it calls "shadow regulation," and it has just published a global review of copyright enforcement agreements. Particularly troubling are the EU's proposals for a new copyright directive, which would require:

It's still very early in the Trump presidency, but so far, things aren't looking good. Overt and implicit threats to freedom of speech continue to linger in the air. Recent comments suggest Trump will look to roll back the few measures taken over the last few years to curb asset forfeiture abuse. Wording in one of President Trump's first presidential statements suggests the administration is going to value "law and order" over citizens' rights. Then there's the travel ban, which is being contested in federal courts.We're now seeing a rollback of the few transparency and accountability objectives the supposed-Most Transparent President Ever managed to accomplish over eight years of generally making things worse on both fronts.This follows Trump's secrecy during his presidential campaign, where he shrugged off over four decades of precedent by refusing to release his tax returns. He's made it clear on multiple occasions -- while standing in front of a memorial to dead CIA operatives and during his Black History Month speech -- that he does not trust the media. But the actions taken during the first few weeks of his presidency suggest he also does not trust the general public.

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Here comes some more law and order, courtesy of our new law and order President. President Trump met with a group of sheriffs on Tuesday and offered to start rolling back civil asset forfeiture reforms. Apparently, it's time to reset the clock on forfeiture, bringing us back to a time when the process wasn't so heavily-criticized. But Trump's not offering to curb abuse. He just fails to see why so many people think it's a bad idea.

Last summer, the DHS started asking visitors to the US to supply their social media handles. It was all on a strictly voluntary basis, of course. But that doesn't mean some immigrants and visa seekers didn't do exactly as they were asked, either due to a language barrier or figuring that turning down this request might harm their chances of entering the country.Six months later, the DHS made it more official, unofficially. An "optional" section in the DHS's online visa application process asked for account info for multiple social media platforms, including (strangely) Github and JustPasteIt. Again, officials assured everyone this was optional and the information was to be used to assess the threat levels of incoming foreigners. Again, the DHS probably harvested a fair amount of information despite the optional nature of the request. Like any cop asking if you'd "mind if they look around the car a little bit," the request carried unspoken threats that things might be a bit more difficult if the request was denied.Now, news comes that the DHS is planning on going even further. Say goodbye to optional social media account disclosure. The DHS wants to be inside travelers' [social media accounts], according to this report from Federal Computer Week.

So we've noted a few times how former FCC boss Tom Wheeler surprised many of us (myself included) simply for basing his telecom policy decisions on actual facts. That doesn't sound like much, but for more than fifteen years, both parties had stocked the agency with a rotating crop of either sector apologists like Michael Powell (now the cable industry's top lobbyist) -- utterly incapable of even admitting the broadband industry had competition problems -- or wishy-washy folks like Julius Genachowski, who basically just told everybody what they wanted to hear, and just hoped things worked out for the best.Wheeler wound up being a notably different animal for the FCC. He based many of his policy decisions on real-world data collected from actual customers (shocking!), repeatedly highlighted the lack of real broadband competition in many markets (blasphemy!), and, as evident on his shift toward Title II reclassification and net neutrality, actually changed his mind when confronted with evidence that challenged his world view (what insolence!).Now that Wheeler's back in the private sector, he's unshackled himself somewhat, last week providing an interesting interview with Harvard Law Professor Susan Crawford. In it, Wheeler takes particular aim at Trump's new FCC pick Ajit Pai, noting the new FCC boss (who repeatedly complained that Wheeler left him out of key policy decisions) refused to even meet with him during the last year. Wheeler also chimes in on the subject of net neutrality, municipal broadband, and how ISPs like Comcast and AT&T have an almost nauseating amount of influence over state legislatures.But the most important part has to do with Wheeler's take on the Trump administration's increasingly obvious plan to defund and defang the FCC as broadband watchdog. Because the industry and our new FCC boss lack the courage to just come out and say this, telecom sector lobbyists (and the various PR flacks, consultants, think tankers, and politicians paid to love them) have concocted a new narrative in which they claim they're simply "streamlining" or "modernizing" government by eliminating the FCC from the equation, and dumping all oversight of megacarriers like AT&T, Comcast and Verizon into the lap of the FTC.Wheeler, however, was quick to point out the real goal of such a shift:

So we've noted a few times how former FCC boss Tom Wheeler surprised many of us (myself included) simply for basing his telecom policy decisions on actual facts. That doesn't sound like much, but for more than fifteen years, both parties had stocked the agency with a rotating crop of either sector apologists like Michael Powell (now the cable industry's top lobbyist) -- utterly incapable of even admitting the broadband industry had competition problems -- or wishy-washy folks like Julius Genachowski, who basically just told everybody what they wanted to hear, and just hoped things worked out for the best.Wheeler wound up being a notably different animal for the FCC. He based many of his policy decisions on real-world data collected from actual customers (shocking!), repeatedly highlighted the lack of real broadband competition in many markets (blasphemy!), and, as evident on his shift toward Title II reclassification and net neutrality, actually changed his mind when confronted with evidence that challenged his world view (what insolence!).Now that Wheeler's back in the private sector, he's unshackled himself somewhat, last week providing an interesting interview with Harvard Law Professor Susan Crawford. In it, Wheeler takes particular aim at Trump's new FCC pick Ajit Pai, noting the new FCC boss (who repeatedly complained that Wheeler left him out of key policy decisions) refused to even meet with him during the last year. Wheeler also chimes in on the subject of net neutrality, municipal broadband, and how ISPs like Comcast and AT&T have an almost nauseating amount of influence over state legislatures.But the most important part has to do with Wheeler's take on the Trump administration's increasingly obvious plan to defund and defang the FCC as broadband watchdog. Because the industry and our new FCC boss lack the courage to just come out and say this, telecom sector lobbyists (and the various PR flacks, consultants, think tankers, and politicians paid to love them) have concocted a new narrative in which they claim they're simply "streamlining" or "modernizing" government by eliminating the FCC from the equation, and dumping all oversight of megacarriers like AT&T, Comcast and Verizon into the lap of the FTC.Wheeler, however, was quick to point out the real goal of such a shift:

Techdirt has written plenty about the controversial "right to be forgotten" -- strictly speaking, a right to be de-listed from search engine results in general, and from Google in particular. Although most people associate this with the European Union, which pioneered the approach, the idea has now spread to other countries, including South Korea, China and Japan. In an interesting article in The Globe and Mail, Michael Geist suggests that Canada has now joined the club:

As we're well aware, the minute you get behind the wheel of your vehicle, your Fourth Amendment protections take a nosedive. Having a vehicle on a public street makes everything viewed through the windows a perfectly acceptable warrantless search. Add to that the number of traffic violations -- real or imagined -- that can act as a pretense for an investigative stop, and driving becomes a warrantless search waiting to happen.While the Supreme Court did scale back some extracurricular law enforcement exploration with its Rodriguez decision, all it takes is an unconfirmable "smells like marijuana" or some other indicator of suspicion (talking too much, talking too little, making eye contact, not making eye contact, interstate travel, etc.) to turn a stop that shouldn't have been prolonged past the point of issuing a ticket into a full-fledged search of a vehicle.Then there's this wrinkle. If you're arrested or otherwise told to leave your vehicle, law enforcement is allowed to take the vehicle into custody (so to speak). At some point, the officer having the vehicle moved performs an inventory of the vehicle's contents. This is to make sure that when the vehicle is returned to the driver, there's no dispute as to whether or not your Creedence tapes and "business papers" went missing while in the hands of law enforcement.What it's not supposed to be is a warrantless search. But because law enforcement is required to perform inventories of everything of value in the car, it often becomes one. And once something is inevitably discovered through the course of an inventory, it becomes very difficult to have the evidence thrown out. After all, law enforcement is doing what it's supposed to do. Too bad the seized vehicle had so much contraband in it.What can happen, however, is courts finding the inventory-taking process to be pretextual in and of itself. If there was no reason to impound the vehicle -- or officers appeared to be clearly motivated by something other than providing a list of contained items, the "inventory exception" can be overcome. FourthAmendment.com compiles two recent judicial unicorns into one handy post. Both come from the same state appeals court (Iowa), which may suggest a history of law enforcement abuse of this exception is finally being addressed.In the first case [PDF], the defendant was approached by a police officer who said he was going to ticket him for improper parking. Since the defendant was unable to produce proof of insurance, this escalated to the officer impounding the vehicle. The defendant refused to consent to a search of the vehicle. The officer said he was just going to inventory the car and proceeded to do so. A gun and bullets were found during the inventory. The defendant challenged the evidence as a Fourth Amendment violation.The court agreed with the defendant's argument -- seizing on the same legal technicality. Under state law, if a vehicle is to be seized for lack of insurance, the officer must first remove the license plates and registration before having the vehicle moved. This officer never took that step. As the court sees it, not following this step indicates the inventory search was pretextual. It was just a thinly-disguised investigative -- and warrantless -- search.

With the way the past couple of weeks have gone for Denuvo, the DRM that was supposed to end piracy but instead only ended the industry's brief resurgence in faith in DRM, you would be forgiven if you thought this was going to be yet another post about another Denuvo-protected game being cracked and released to the pirating masses. This isn't that kind of story. Instead, it's the story of game publisher Funcom accidentally stripping Denuvo out of the latest build of its early access game, Conan Exiles, and having that be released to the pirating masses.

For many, many years, we've pointed out why there are problems with an executive branch that is too powerful. As we noted, laws should be designed as if the people you trust the least are in power. Of course, in an era of partisan red team/blue team politics, very few people seem to care or listen. Or, worse, their positions on executive power seem to shift based on whether "their guy" is in power or "the other guy" is in power. But in a situation that would be amusing if it weren't quite so terrifying, some of the biggest advocates for expanded executive power are suddenly freaking out about the very thing they helped bring about now that there's a President Trump.Ryan Lizza, over at the New Yorker, has a post detailing the ways in which Trump could seize more power following a terrorist attack. And there are lots of ways. That, by itself, may be interesting, but what strikes me as even more interesting is that the people who he quotes are some of the very people who helped create this kind of world where the President has almost unlimited power in certain areas.First up, he quotes Jack Goldsmith. Goldsmith worked for George W. Bush, and while he's positioned himself as having pushed back against executive branch expansion, while he was there he did sign the Office of Legal Counsel memo that enabled the NSA to basically spy on all Americans' internet usage. That memo included the following:

The FBI's relationship with the FOIA is, at the very least, contentious. The agency clearly would rather follow the letter of the law than its spirit... but only the letters it likes. It will technically release documents -- sometimes years after the request is made -- even if said documents are nothing more than a mostly blank paper telling the requester that all 509 pages have been withheld.To the FBI -- and to its official FOIA stats -- this release of nothing counts as a "response." Even cutting itself this much slack on "responses" hasn't helped the FBI's FOIA stats. This has led to it preemptively declaring any response that may include more than 50 pages as "complex," in hopes of massaging its clearly awful response times.Considering the FBI's open antagonism towards FOIA requesters, it comes as no surprise the agency is making it even more difficult for requesters to make requests. The Daily Dot reports on the FBI's latest changes to its FOIA policies.

We've written numerous stories about Barrett Brown, the reporter who was sentenced to 63 months in jail after being pressured into signing a plea deal. If you don't recall, Brown's "crime" was trying to get a bunch of people together to crowdsource an investigation into the famous Stratfor email hack. The feds went after him for posting a link (yes, posting a link) to a group to investigate, and because some of the Stratfor info included credit card data, the feds argued that Brown was trafficking in stolen credit cards. Really. And while the feds eventually dismissed the specific charges related to the links, the judge justified the long sentence against him because he copy/pasted that link.The whole thing was a travesty. Brown is thankfully out of jail now, but earlier this week, Kevin Gallagher, who helped organize a legal defense fund for Brown, sued the Justice Department over claims that the DOJ illegally tracked and monitored everyone who donated to support Brown. Gallagher is looking to make this a class action lawsuit. You can read the full complaint here. From the filing:

We've covered all kinds of stories about the Streisand Effect here at Techdirt, for the obvious reason that our overlord originally coined the term. From individuals to professional sports leagues to celebrities, there is something of a pantheon in these pages of those that attempt to silence speech or coverage they don't like which instead results in much wider coverage of that speech or coverage. But I can't seem to find an instance where we've had the opportunity to ding an entire wing of a congressional body for failing to understand how all of this works before.And so it is with great pride that I am able to bring you the story of how the Senate silenced Elizabeth Warren as she read a letter authored by Martin Luther King Jr.'s widow during the debate over confirming fellow Senator Jeff Sessions as Trump's Attorney General.

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I will admit that Australia's defamation law is fairly baffling, in that it seems to repeatedly allow individuals who have had mean stuff said about them to demand all sorts of content be completely blocked from existence -- based solely on the claims of the aggrieved, and prior to any court ruling. It's a "right to be forgotten" gone mad. The latest such example of this... involves us. We recently discovered that an Australian guy by the name of Michael Roberts is demanding that an entire Techdirt page be removed from Google's index. Having not recalled ever writing about anyone named Michael Roberts, I went to look at the article and discovered... it doesn't mention anyone named Michael Roberts and doesn't seem to involve him at all.Instead, it's an article from about a year and a half ago about a preemptive lawsuit filed by Ripoff Report against a prosecutor in Iowa who has been aggressively pursuing Ripoff Report for quite some time. As we noted in the article, the judge in the case found no one to like and spends plenty of time pointing out the problems of everyone who is a party to the lawsuit. As the judge noted, the prosecutor pursing Ripoff Report, Ben Smith, appeared to focus on investigating Ripoff Report for "retaliatory reasons." Meanwhile, Ripoff Report was clearly no angel as well, potentially trying to stretch Section 230 of the CDA to cover content written by someone hired by the company (CDA 230 is clearly limited to user generated content, and not to works directed by the company).That story was kind of interesting, but it apparently just revealed the tip of the ice berg of the dispute between Smith and Ripoff Report. It apparently goes much deeper involving all sorts of conspiracy theories, which we won't even begin to discuss here, other than to note that it appears that many of the people involved in the ongoing dispute all happened to show up in our comments and... go wild posting anything and everything. Some of the back and forth conspiracy theories do involve the guy who sent this notice, Michael Roberts. And, because of that, he wants our entire post (and a whole bunch of other things) entirely blocked from Google. I'm not going to go into the different claims and conspiracy theories in the comments because, frankly, it would take basically a week -- and probably some bulletin boards with photos, printouts and red strings connecting totally unrelated incidents.But I do find it worrisome that even if Roberts is correct that various negative "imputations" can be made from some of the nuttier comments in the thread, that it means our original story -- which, again, doesn't even mention him -- should be blocked from Google. Honestly, if you read through the comments, and can even keep the various players and claims straight (good luck with that!), it's hard to believe that Roberts is the one who comes out of the whole thing looking bad. But, of course, in filing this takedown notice, he's only causing more people who wouldn't be paying attention at all to go look at the comments and see what this is all about.Also, it does seem worth noting that beyond our specific articles, and some specific YouTube videos, the takedown request demands entire blogs and social media accounts be blocked, rather than specific statements/posts/articles that could be defamatory. That seems like a clear demand for prior restraint and broad based blocking of individuals, rather than of actually defamatory speech.There's a popular saying that the best response to speech you dislike is more speech, and this seems like one of those cases. Rather than freaking out and demanding an entire article (not about him) be taken down, why not leave things in context where people can judge the unreliability of the claims on their own merit (or lack thereof).

For decades, inmate calling service (ICS) telcos have charged inmates and their families upwards of $14 per minute for phone calls without anybody giving much of a damn. Because these folks are in prison, and as we all know everybody in prison is always guilty, drumming up sympathy to convert into political momentum had proven difficult. But after decades of activism, the FCC intervened in 2013 and again in 2015, voting to cap the amount companies can charge the incarcerated for intrastate phone calls. This resulted in a firestorm of complaints from these companies, which not only get to rip off inmates, but have all too cozy and often not particularly legal relationships with law enforcement.One of the more vocal ICS outfits, Securus, quickly sued the FCC, going so far at one point as to claim that inmates would riot if the company wasn't allowed to continue overcharging inmates and their families. Securus, Global Tel*Link and other providers challenged the FCC's intrastate rate caps in the US Court of Appeals for the DC Circuit, claiming the agency lacked the adequate authority to set caps and that the rates were too low. And for the last several years, the FCC had been working to defend its actions in court.That all changed last month, when Donald Trump pegged Ajit Pai to head the FCC. Pai and former Commissioner Mike O'Rielly had consistently voted against defending inmates from monopoly overcharging. And just days after giving a speech in which he professed his selfless dedication to closing the digital divide, Pai effectively decided to pull the rug out from underneath FCC Deputy General Counsel David Gossett, who had been defending the FCC's action in court. In a brief filed by Gossett last week (pdf), he notes that he was ordered to no longer defend the FCC's intrastate calling cap:

Back in 2015, we noted that there was a global move to strengthen laws governing trade secrets. Enhanced protection was something that was included in the mercifully dead TPP agreement, and may well crop up again in the bilateral trade deals that the US administration says it now wants to pursue in TPP's stead. One of the many problems with enhanced trade secret protection is that it can make whistleblowing more risky, since companies might try to claim that their right to preserve embarrassing secrets outweighs any public interest in revealing their dubious activities.That was such a concern when the EU passed a new law protecting trade secrets last year that a group in the European Parliament drafted their own proposal for codifying whistleblower protection in the EU in order to highlight the issue. As well as this general concern about the status of whistleblowing in the EU, there are more immediate problems at the national level in Germany, as this post on the EDRi site explains:

The efforts to reform ECPA -- the Electronic Communications and Privacy Act -- have been going on for basically two decades at this point. The law, which was passed in 1986, has a whole bunch of problems, with the biggest one (as we've discussed dozens of times) being that it considers any email that's been on a server for more than 180 days "abandoned," and thus freely searchable by law enforcement without a warrant. That's because there was no concept of cloud computing back in 1986. People who got email "retrieved" those emails off of a server and downloaded them to local storage. Many in Congress have been trying to fix this for so, so, so many years. And it always gets blocked. The IRS and the SEC have both been fairly proactive in trying to block ECPA reform bills that will require a warrant (funny: I thought it was the 4th Amendment that made such a warrant necessary, but, silly me, no one cares about the 4th Amendment any more).Last year, a plan to fix ECPA, called the Email Privacy Act, with an astounding 315 co-sponsors, passed the House unanimously. As we noted at the time, this is fairly incredible. In these contentious times -- especially on issues related to surveillance and law enforcement -- to have a unanimous vote on a law that says "get a warrant" if you want access to emails, is quite incredible. But, of course, even with that much support on that side of Congress, the Senate has a way of killing ECPA reform each and every year. Last year, a few Senators -- including Jeff Sessions, who is likely to be our next Attorney General -- tried to bury it with ridiculous amendments that would expand surveillance.On Monday, the reintroduced Email Privacy Act easily passed the House via a voice vote, showing that our Congressional Members still recognize how important this is. Of course, now it gets to go back to the Senate, and we saw how well that worked last year. And then we have to believe that President Trump will sign the bill. Stranger things have happened, of course, but it still seems like a longshot that real ECPA reform will become law this year. It's great that Rep. Kevin Yoder, along with Reps. Jared Polis, Bob Goodlatte, John Conyers, Ted Poe, Suzan DelBene, Will Hurd, Jerry Nadler, Doug Collins and Judy Chu keep pushing this bill. I disagree with many of the folks on that list on a number of other issues we cover, but the fact that they're willing to support basic 4th Amendment concepts for email is worthy of recognition. Now, hopefully, the Senate won't try to muck it up again.

Disclaimer: As you probably already know, the lawyer in this story, Charles Harder, is the lawyer in the ongoing lawsuit against us.Back in September of last year, we wrote about how our now First Lady Melania Trump, represented by Charles Harder, had sued the Daily Mail and some blogger in Maryland. As we noted at the time, the choice of Maryland for the venue was odd -- since the Daily Mail is a UK publication and Trump (at the time) lived in NY. We speculated that the blogger -- Webster Griffin Tarpley, who was not widely known -- may have been included solely to try to get the case into a Maryland court. As we noted at the time, Maryland's anti-SLAPP law is notoriously weak. In a profile on Harder last year, the Hollywood Reporter noted that he's well aware of the differences in state laws:

The adoption of self-driving cars is rapidly changing from science fiction to present reality. We had a preliminary discussion on the subject here on the podcast a couple years ago, but today we're digging more deeply the impact this is having, especially on policy. R Street Institute senior fellow Ian Adams joins us as a special guest this week for a discussion about the many implications of this accelerating technological shift.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.

Security isn't the only thing being ignored as hardware vendors rush to connect televisions, toasters, and tea kettles to the internet. Consumer privacy and data-collection transparency has also become a distant afterthought as companies rush to cash in on the ocean of data these connected-devices collect. The "smart" television sector has been notably problematic, with Samsung busted a few years back for not only recording customer living room conversations, but transmitting that data unencrypted back to the company mothership.These are lessons that hardware vendors appear incapable or unwilling to learn. Case in point: this week the FTC announced that it had struck a $1.2 million settlement with discount TV vendor Vizio. According to the full FTC complaint (pdf), Vizio began using the company's smart televisions to track user behavior in 2014, without informing customers that this was happening. The FTC notes that Vizio for years heavily advertised a "Smart Interactivity" feature that "enables program offers and suggestions." But the complaint notes this feature never provided customers with a single suggestion.But it did provide Vizio with a wonderful new way to collect and store a huge variety of consumer data under the pretense of adding consumer functionality. MAC addresses, IP addresses, nearby WiFi network names, metadata were all hoovered up and stored. And when the FTC says viewing data, it means that Vizio used pixel analysis to compile personal data on every program and device connected to the Vizio set:

I recognize that many (especially regular Techdirt readers) will assume from the title above that the question is a rhetorical one in response to the latest craziness around a stupid trademark or awful patent. But, no, we mean that literally. You see, right before the Trump inauguration, it was widely reported that Michelle Lee would stay on as the Director of the US Patent and Trademark Office. That was undeniably good news. For all the complaints we have about the USPTO, Lee has done a fairly amazing job running that office, and seems to be one of the first Patent Office directors who actually understands how patents can do serious harm to innovation. Keeping her on would be a really good sign. After seeing the stories claiming that she was staying, we'd mostly moved on. However, Politico reporter Nancy Scola sent me down something of a rabbit hole after tweeting that it's basically impossible to know who's in charge of the Patent Office right now.The USPTO's site still says it's Lee:That seems like that should be that. However, there are conspiracy theories afoot -- mainly being discussed by Gene Quinn over at IP Watchdog. Gene and I disagree about basically everything as it relates to patents, and he's got a history of insulting me, so I have every reason to basically ignore him. But, on this, he may have a point. And the questions about whether or not Lee is actually in charge are also being asked by a much more respectable patent website, Patently-O.The issue started when Quinn noticed that, despite the claims that Lee was staying on, the Commerce Department (which the USPTO is a part of) leadership page says the role is "vacant." Here's the latest screenshot I took:As for the PTO's own website, Quinn rightly points out that its leadership page still lists out a number of other individuals who have announced resignations and are no longer there, but whose profiles are still on the website. The Commerce Department seems to be refusing to comment to anyone who asks (I've sent in my own question) and it's quite unclear if Michelle Lee really is the director.If you look through the fairly long list of articles by Quinn on the subject, it's quite clear that he (as someone who is not a fan of Lee) is hoping that she's been pushed out, and is trying to drum up controversy over the possibility that she might remain. But the lack of any clarity from anyone... is bizarre. Quinn's most recent post on the subject notes that while no one seems willing to say who's running things, Lee "continues to be seen" in the building. That would certainly support the theory that she's staying. But... she's also cancelled a bunch of speaking engagements, and no one at the USPTO or Commerce Dept. seems willing to say anything. Also, in an earlier report, Quinn noted that he'd been told, unofficially, that Drew Hirshfeld is "Acting Director," implying Lee had left. But the whole thing seems to be... unclear:

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In case you were wondering what other misery DRM could contribute to, Hacker House security researchers have an answer for you:

Just last week, new FCC boss Ajit Pai made a speech in front of FCC staffers breathlessly professing his dedication (pdf) to consumers, innovation, and closing the digital divide. In a post over at Medium, the former Verizon lawyer again insisted that closing the digital divide would be the defining theme of his tenure as FCC Boss:

It's unclear how many Americans are under surveillance by the FBI. Not only would the agency be extremely unwilling to even provide a broad estimate, but the underlying basis for a preliminary investigation is so thin it could conceivably cover a majority of US residents.A previously-classified document [pdf] obtained by The Intercept gives more insight into the FBI's use of "assessments" -- an investigation the agency doesn't consider an investigation.

We've made the point before. In the pantheon of trademark disputes, the most commonly trotted out excuse for overt protectionism is nothing but a headfake. While companies often proclaim their bullying actions are a requirement under trademark law's provision for active policing of infringement, the fact is that this requirement does not mandate that companies roadblock any and all similar uses to their marks. Instead, the idea is that trademark holders cannot allow actual infringements to go unchallenged.For an example of the difference, we can point to the current dispute between two companies in the food mart business, Dawa Food Mart and Wawa Inc. The former is a single store in New Jersey that has operated for two years now. The latter is a mid-sized chain that only recently decided that Dawa infringed on its trademarks.

A ballot measure introduced by a bipartisan group of Michigan legislators is sure to encounter some heavy resistance on its trip through the lawmaking machinery. The proposal amends the state's constitution to add a warrant requirement to data that law enforcement is used to obtaining without one.

Once exclusively the domain of hospitals with comically-bad IT support, crippling ransomware attacks are increasingly beginning to impact essential infrastructure. Just ask the San Francisco MTA, whose systems were shut down entirely for a spell last fall after a hacker (with a long history of similar attacks) managed to infiltrate their network, forcing the MTA to dole out free rides until the threat was resolved. Or you could ask the St. Louis public library network, which saw 16 city branches crippled last month by a bitcoin-demanding intruder.We've also seen a spike in ransomware attacks on our ever-expanding surveillance and security apparatus, DC Police acknowledging this week that 70% of the city's surveillance camera DVRs were infected with malware. The infection was so thorough, DC Police were forced to acknowledge that city police cameras were unable to record much of anything during a three day stretch last month:

In the wake of President Trump's travel ban, the San Francisco Police Department has offered up an unprecedented response: it's breaking up with the FBI.

Surprising nobody, new FCC boss Ajit Pai used a flurry of late-Friday announcements to roll back a number of consumer-friendly FCC initiatives the former Verizon lawyer (and the large ISPs that already love him) didn't like. Among them was the Wheeler-led FCC's attempt to crack down on zero rating, the practice of an ISP exempting its own content from its own arbitrary usage caps, while still penalizing competitors. The former FCC had just belatedly ruled that both AT&T and Verizon's zero rating efforts were anti-consumer, anti-competitive, and dramatically damaged the open streaming video market.That was then, and this is now.This new, Pai-led FCC wasted no time sending AT&T, Verizon and Comcast letters (pdf) proclaiming that all FCC inquiries into the anti-competitive impact of zero rating have been dropped. In a brief statement (pdf) issued to the media, Pai went so far as to imply he was doing this not because it's what giant ISPs wanted -- but because of a selfless dedication to the poor:

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Just south of the Second Circuit Court of Appeal's district, a Pennsylvania (3rd Circuit) federal judge has come to (nearly) the opposite conclusion on law enforcement's access to emails stored overseas. This case deals with two FBI SCA (Stored Communications Act) warrants seeking emails that Google says aren't stored in the United States. Google, however, also says the sought emails could be at any of its data storage sites -- which would include those in the US. It all depends on when it's asked to retrieve the communications.And there's where this decision parts ways with the Second Circuit, which found that emails stored in an Irish data center weren't subject to US-issued warrants. The court explains [PDF] Google's process for handling user data, which is built for efficiency, rather than what's central to the FBI's demands: efficiency of retrieval in response to law enforcement requests.

As we've been noting, broadband providers have wasted no time pressuring Congress to kill the FCC's new broadband privacy rules. These rules, passed last year, simply require that ISPs are transparent about what data they're collecting and who they're selling it to, while requiring they provide working opt-out tools. But the rules went further in requiring that broadband customers opt in to more sensitive data collection, including financial data. Given an informed, empowered consumer means less advertising revenue, ISPs quickly went to work throwing a monumental hissy fit.This week, a coalition of broadband providers including Comcast, AT&T, T-Mobile and Verizon issued a breathless letter professing their absolute dedication to consumer privacy, apparently hoping that consumers haven't noticed they're simultaneously trying to kill the first meaningful broadband-specific privacy protections users have enjoyed in the history of the technology. As you might expect, the least-liked industry in America spends a notable part of the missive patting itself on the back for its selfless dedication to user privacy:

I've been quite clear how I feel about Donald Trump's awful executive order that places a blanket ban on people entering the US (even if they had valid visas) from 7 countries, including a permanent block on Syrian refugees. Tons of people have been protesting this decision, and multiple courts have ruled against it. There has been some discussion over whether or not the tech industry was really going to stand up against this move, and some of the early statements about the executive order were a bit weak. However, late Sunday night, basically the entire technology industry (plus some companies from other industries as well) signed onto an amicus brief calling the order illegal and unconstitutional (technically, it's a motion asking for permission to file the amicus brief, with that brief attached).The brief was filed in the Ninth Circuit appeals court, which is one of the first appeals courts considering the executive order, after a federal judge in Seattle issued a nationwide temporary restraining order on enforcing the exec order. On Sunday, the appeals court refused to reverse the lower court, keeping the TRO in place. However, it also gave both parties (the lawsuit itself was filed by the state of Washington) a very quick turnaround time to file written arguments to be considered.Given that incredibly short time frame, the fact that 97 companies -- including some of the world's largest -- but also some tiny ones, like the Copia Institute (the think tank arm of Techdirt), were able to come together and not only get a detailed amicus brief together, but also get sign on from all of those companies (on Super Bowl Sunday, no less), is impressive. Having been through the process in which amicus briefs with multiple signers has been done before, normally there's lots of hemming and hawing from different companies and nitpicking over certain choices. It takes a lot of effort. Update: Another 30 companies have signed on as well.But this issue was so important and so core and fundamental to our basic values, that basically the entire industry came together and signed onto this. You name the company, and it's probably signed on. There are the big guys: Google, Facebook, Microsoft and Apple (despite a false Washington Post article that claimed none of them had signed on). There are lots of other huge names as well, including Twitter, Snap, Uber, Airbnb, Lyft, Dropbox, Cloudflare, Box, eBay, GitHub, Kickstarter, Indiegogo, Medium, Mozilla, Patreon, Paypal, Pinterest, Reddit, Salesforce, Spotfy, Stripe, Wikimedia, Yelp, Y Combinator and many, many more. Update: Among the notable companies in the "late" sign on, were SpaceX, Tesla, Slack, Pandora, Adobe, HP, Evernote, Udacity and more...I highly recommend reading the full amicus brief -- which makes an economic argument, a moral argument and a legal argument all wrapped up in one.

Normally, on the rare occasions that Mike's or my own comments win the top spots, I skip over them unless they are really important — since this post is all about highlighting reader comments. This week, however, our participation in the comments on our response to Trump's immigration ban dominated the leaderboards to such a degree (with one double-winner) that skipping them would mean going pretty far down the list, so this particular comment post will have to be more boastful than usual. And indeed, all of our top-voted comments this week come in response to that post.That said, a reader still beat Mike and me out for first place on the insightful side. Roger Strong provided the very first comment on the immigration post, and racked up the points with a simple and appropriate quote:

Five Years AgoThis week in 2012, we watched as the reaction to ACTA continued to heat up. Though the opposition was in some danger of straying off course, there were some big developments: the Slovenian Ambassador apologized for signing the deal, the Polish Prime Minister suspended all efforts to ratify it, Bulgarian MPs followed in the footsteps of Polish MPs the week before and protested with Guy Fawkes masks, and widespread protests began to break out across Europe.Meanwhile, the TPP was also on the docket for the week, with a stark example of crony capitalism presented by the USTR getting civil society groups kicked out of the Hollywood hotel where it was hobnobbing with entertainment industry elites. We pointed out that SOPA/PIPA should be a pretty good lesson on why these negotiations need to be way, way more transparent.Also, this was the week we released the first Sky Is Rising report.Ten Years AgoThis week in 2007, the world was still reacting to the newly Google-owned YouTube. The plans for revenue sharing with video creators were brewing, and while NBC was embracing the promotional value of YouTube clips, Viacom made its big move of telling Google to yank 100,000 videos off the service, setting the stage for the big legal feud to follow.Also this week in 2007: Sony BNG reached a deal with the FTC for violating federal law with its horrible rootkit DRM, the RIAA had a SWAT team raid an Atlanta mix-tape producer on questionable legal grounds, Google was offering half-apologies for aiding Chinese censorship, and Adult Swim's now-infamous marketing stunt shut down the city of Boston.Fifteen Years AgoFive years earlier in 2002, Google made a much more popular decision when it announced it would not use pop-up ads. Of course, that seems obvious now, as did other things that were fresh at the time, like the convergence of wireless devices and the possibility of having a laptop as your only computer. In the world of secondary effects from the dot-com bubble bursting, we saw Cisco grappling with a huge gray market for used IT products and folks to dropped out to work in tech going back to school to finish their degrees.Also, because nothing is truly new: folks were commenting on how news was getting less factual and more opinionated.One-Hundred And Seventy Years AgoThough not in fact headquartered in the city itself, Techdirt does a whole lot of its business in and around San Francisco — so this week we're marking a milestone in that city's history. It was on January 30th, 1847 that its name was changed from Yerba Buena to San Francisco by Lt. Washington Allon Bartlett.

It's common knowledge at this point why advertisers start to go wonky after the new year. We've long talked about how all kinds of groups and companies suddenly begin playing the euphemism game when it comes to the Super Bowl, America's annual celebration of brain trauma. Everyone, from comedians to beer makers to tech companies, goes to great lengths to wink at everyone as they all refer to the Super Bowl by any name other than its own. Why? Well, because the NFL has a trademark on the term, which allows it to restrict the user of the phrase only to its sponsorship partners... except that that's not remotely true and isn't how trademark law works at all. Instead, the only real prohibition is on the implication that a company is an official sponsor of the NFL when it isn't. Beyond that, simply calling the game what it's called isn't trademark infringement.But this is confusing enough that this year the website HowStuffWorks has done an entire piece to explain to an almost certainly confused public why companies are pretending that nobody knows what they're talking about when they say "the big game" instead of "the Super Bowl." It's a post that deserves a rebuttal, which I will helpfully provide.

For many, many years we've talked about the importance of strong anti-SLAPP laws. In case you're new to the subject, SLAPP stands for a Strategic Lawsuit Against Public Participation. In short, SLAPP suits are lawsuits where it is fairly obvious that the intent of the lawsuits is to stifle free speech, rather than for a legitimate purpose under the law. The intention of anti-SLAPP laws are to allow for such lawsuits to be tossed out of court quickly -- and, frequently, to force those who bring those suits to pay legal fees. While actually getting a federal anti-SLAPP law is really important, for now, we're left with a patchwork of state laws. While many (though not all) states have anti-SLAPP laws, they vary widely in terms of what they cover and just how strong or effective they are.As we've pointed out in the past, a few years ago, Nevada passed a really great anti-SLAPP law, though it's been under attack the past few years. Thankfully, Marc Randazza informs us that Nevada's anti-SLAPP law has been found to be Constitutional, meaning that it will survive largely intact (a few changes had been made a few years ago to bolster the law's likelihood of surviving).Perhaps even more important was that the ruling basically recognized that Nevada's anti-SLAPP statute was similar to California's (much older and much more broadly litigated anti-SLAPP) law, and that Nevada courts can use California case law for its own anti-SLAPP cases. That's also a good thing:

Another day, another wacky legal complaint. This one, first spotted by Eric Goldman was filed by a recent law school grad, Tiffany Dehen. She's fairly upset that someone set up a parody Twitter account pretending to be her that portrayed her in an unflattering light. So she has sued. For $100 million. And she's not just suing the "John Doe" behind the account... but also Twitter. Oh, and also the University of San Diego, because she's pretty sure that someone there is responsible for this account (she just graduated from USD's law school). Oh, and according to the exhibits that Dehen put in her own lawsuit, the account is labeled as a parody account.The lawsuit... well... it doesn't reflect well on the University of San Diego law school and its ability to prepare lawyers. I don't know if the law school didn't teach Ms. Dehen about California's anti-SLAPP law, but she's likely about to get a quick post-graduate lesson about it. I won't even get into the reasons why this is unlikely to be defamation (parody, people, parody...), but the fact that Twitter and USD are included... is pretty nutty. Twitter will get out of the case pretty damn easily under Section 230 (does the University of San Diego law school not teach Section 230?!?). And, of course, there's this, which kind of speaks for itself:If you can't read that, it says:

We've already made our views clear on the horrible nature of the Trump administration's ban on travelers who were born in seven predominantly Muslim countries. The administration has been trying to defend the program, but its talking points are (once again) falling apart. For example, the idea that this only "inconvenienced" a tiny percentage of people and was only temporary — government lawyers have now revealed that over 100,000 visas were permanently revoked. Permanently.But the story that's gotten a lot more attention is how Trump aide Kellyanne Conway went on TV last night and tried to back up another talking point: that this is no different than what President Obama did with Iraqi visas. That's not true, but we'll get to that. Even if it were true, Conway seemed to literally make up a terrorist attack that didn't happen, calling it the "Bowling Green Massacre."Of course, there was no such massacre. This has resulted in lots and lots of social media mocking about the "massacre" that didn't exist. Some of the mocking is actually quite funny. And, of course, you might want to go donate to the Bowling Green Massacre Fund to support the victims.Conway, of course, has said that she merely misspoke and had meant to say "Bowling Green terrorists" and then further pointed to a 2013 article about the two arrested Iraqis, claiming that it was a sign that "dozens" of terrorists could live in the US as refugees.Even ignoring the ridiculous massacre claim, and accepting the idea that she just meant to say "terrorists", absolutely everything about this story fails to make her point unless you actively distort it. Let's dig in:

For many years, we've written about Carl Malamud and his non-profit organization Public.Resource.org, which goes to great lengths to make sure that the law and other government documents are widely available to the public. While he's gotten lots of attention for battling states over their claims to hold a copyright in the law, perhaps his biggest fight has been over the question of whether or not private standards that are "incorporated by reference" into the law, are still covered by copyright. And, unfortunately, the federal district court in Washington DC has just ruled against him, and effectively said it's okay to lock up some important elements of the law with copyright. This is bad news.Some background: as you probably know, there are tons of standards bodies out there who create various standards. Most techies are quite familiar with various technology standards, developed by various groups. But standards obviously go way beyond just the tech industry. Think: building codes for plumbers and electricians. These are often developed by independent, private bodies. Of course, you may also realize that some of these standards are in the law as well. These are generally known as "incorporated by reference." That's just a fancy way of saying that a private group created a standard and then lawmakers put into the law "this thing we're regulating needs to meet those standards." So, for example, fire codes may be developed by a private body, but then governments say that any building has to meet those standards. Voila: those standards are "incorporated (into the law) by reference."The question, though, is how accessible are these standards? Many of the standards bodies that create those standards like to sell them. That's often how they make their money. But that seems to be in fairly dire conflict with the idea that the law should be publicly accessible. It's fairly difficult to argue that the rule of law is paramount when you can't even see the law without having to buy a bunch of expensive standards. To deal with this, many regulators and standards bodies have come up with awful hedges -- which basically say that any such standard incorporated by reference must be "available to the public," but they allow that availability to be insanely limited. So, for example, the EPA basically says, sure, you can see all of the standards, if you trek to DC and go to a special reading room (or a few other limited places):

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Back in 2014, when ZeniMax first claimed that Oculus and its CTO John Carmack had copied the company's VR technology, we pointed out the obvious: since ZeniMax hadn't made a peep until the announcement that Facebook was buying Oculus for a cool $2-billion, it was a pretty blatant cash-grab. Now ZeniMax has scored a partial win in its lawsuit against Oculus and its executives, with the jury rejecting claims of trade secret misappropriation but awarding $500 million for copyright and trademark infringement and violation of non-disclosure agreements.The trade secrets were the most important claim, but Oculus has already vowed to appeal the rest — so the case isn't over. But the most interesting thing to come out of this verdict is a statement from John Carmack about the expert testimony on "non-literal copying" that was central to some of the copyright claims:

Comcast's earnings report this week indicated that the company managed to add 80,000 basic video subscribers during the fourth quarter, and 161,000 net video customers for the full year. And while news outlets were quick to proclaim that Comcast had magically bucked the cord cutting trend, you'd be hard pressed to find a single outlet that could be bothered to actually explain how. When an explanation is given, it's usually just regurgitation of Comcast's claim that the cable giant's fending off cord cutting thanks to the company's incredible innovation in the set top box market:

Comcast's earnings report this week indicated that the company managed to add 80,000 basic video subscribers during the fourth quarter, and 161,000 net video customers for the full year. And while news outlets were quick to proclaim that Comcast had magically bucked the cord cutting trend, you'd be hard pressed to find a single outlet that could be bothered to actually explain how. When an explanation is given, it's usually just regurgitation of Comcast's claim that the cable giant's fending off cord cutting thanks to the company's incredible innovation in the set top box market:

As you may have noticed, here on Techdirt we write quite a lot about companies like Apple, Google and Facebook. That's partly because they are very rich and very powerful, and therefore tend to be driving many of the key developments in the tech field. Some think they are too powerful. Here, for example, is Robert Reich, writing for The New York Times, in a 2015 piece entitled "Big Tech Has Become Way Too Powerful":

As face-scanning technology has progressed, its use in video games has become more and more realistic. While several games make use of this to transport the gamer directly into the game they play, one of the best to do this is 2K Sports' NBA2K series. By using a web camera or your smartphone, you can take a scan of your face and import it into the game to create your own avatar to ball out on the court with NBA stars. I've done this, and it's awesome.It's that face-scanning feature that was the subject of an attempted lawsuit by a brother and sister in Illinois, however, who argued that Take-Two was violating the state's Biometric Information Privacy Act, which seeks to ensure that businesses that store biometric data for their customers are protecting that data and not using it in ways the customer had never intended. The idea is that if your bank requires a fingerprint to access your account, and either loses that data to theft or uses that data for some other purpose, the public can get monetary and injunctive relief from the court. To do so, however, the plaintiff must suffer actual harm from a violation of BIPA.Ricardo and Vanessa Vigil used the face scan feature in a copy of NBA2K they purchased, and agreed to the terms of service for the feature, but then sought monetary damages against Take-Two, claiming that the "actual harm" they suffered was the failure to follow every rule in BIPA itself. They claimed that the risk that their faces could be pilfered after they decided to play the online portions of the game with the characters they created using their face scans qualified as actual harm. The judge, after a motion to dismiss by Take-Two, was not buying it.

Nine years ago we had a post about some of the ridiculousness surrounding trademarks and the Super Bowl (a popular topic this time of year). In particular, we mocked the fact that the New England Patriots had filed for some trademarks in the week before the Super Bowl. Then, as now, the Patriots made it to the Super Bowl, but that year they had done it with a perfect record, winning all 16 games in the regular season and the first two playoff games to go 18-0. They were heavily favored to win the Super Bowl, and had filed for trademarks on both "Perfect Season" and "19-0." Of course, the NY Giants came away with quite the upset and sent the Patriots home as losers. Given that, we were kind of surprised a few months later to discover that the Patriots were still seeking the trademark on "19-0," despite the fact that its actual record for the season was a demoralizing 18-1.I pretty much stopped following it after that and assumed that the Patriots probably gave up as well. But, no. ESPN now tells us that nine years later, the US Patent and Trademark Office has approved the trademarks. No. Really: