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The ongoing fight at the W3C over Encrypted Media Extensions -- the HTML5 DRM scheme that several companies want ensconced in web standards -- took two worrying turns recently. Firstly, Google slipped an important change into the latest Chrome update that removed the ability to disable its implementation of EME, further neutering the weak argument of supporters that the DRM is optional. But the other development is even more interesting -- and concerning:

Over the last few months, we've talked about the weird obsession some people upset by the results of the election have had with the concept of "fake news." We warned that focusing on "fake news" as a problem was not just silly and pointless, but that it would quickly morph into calls for censorship. And, even worse, that censorship power would be in the hands of whoever got to define what "fake news" was. Thus, it was little surprise to see China and Iran quickly start using "fake news" as an excuse to crack down on dissent online.And, of course, just recently a pretty thorough study pointed out that "fake news" didn't impact the election. It turns out that -- just as we said -- fake news didn't really change anyone's mind. It just served as confirmation bias.Either way, there are still a bunch of people who are really focused on this idea of "fake news" and how it must be stopped. The latest to step in with a suggestion is MSNBC's chief legal correspondent Ari Melber, who is suggesting that "fake news" can be regulated by the FTC in the same way that it goes after fraudulent advertisers who put up "fake" websites pretending to be impartial news sites talking up the wonders of acai berries or whatever. To be fair to Melber, his suggestion is carefully framed and includes many of the important caveats. This isn't a piece that's filled with the "you can't yell fire" kind of tropes, but it's still problematic.You can read Melber's whole piece, where he admits that the 1st Amendment is an issue, and that courts are very careful about it, but seems to think it's no problem to stretch cases where the FTC goes after companies who are directly making stuff up to sell a product to cover situations where sites are making stuff up to get clicks or to sell a political candidate:

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What's up, FBI? Back in early 2015, when the FBI and (specifically) Director James Comey ramped up their silly "going dark" moral panic about how strong encryption was making us less safe, I sent a Freedom of Information Act (FOIA) request to the FBI for all of the FBI's internal talking points about "going dark" or other views on encryption. My main reason for this was really to see if I might uncover some of the reasoning for why the FBI had quietly deleted a page on its website that encouraged people to encrypt their phones. It took until May of last year, but the FBI finally delivered me a stack of talking points, mostly focused on talking point lists and speeches given by Comey. I never wrote about it because the talking points alone weren't even that interesting.In fact, I'd almost totally forgotten about that entire request. But then, a few weeks ago, right here on this site, Tim Cushing wrote about the latest escapades of Jason Leopold, the reporter whose use of FOIA requests is so prolific that he's been dubbed a "FOIA terrorist" by the DOJ. It turns out that Leopold had made a similar request to the FBI... and was told that while they had found 487 responsive records, they were giving him a grand total of 0 of them, because they were all subject to restrictions on release. In that article, Cushing, rightly explains why this is ridiculous. The whole point of "talking points" is to share them with the public. There is simply no FOIA exemption that allows for blocking them.But this was even more bizarre to me for the simple fact that the FBI had already sent me many of those documents. I didn't add up all the pages sent to me, but I can tell it's probably closer to about 100 pages than 487, so clearly the FBI is likely lying to me as well in terms of how many "responsive" documents there really were, but I'm confused as to why the FBI couldn't release these kinds of documents to Leopold.

AT&T is pretty damn excited about former Verizon lawyer Ajit Pai, Trump's new industry-cozy pick to head the FCC. That's in large part because Pai has made it clear his goal isn't just to gut net neutrality, new broadband privacy rules and most of the other consumer protections pushed by former FCC boss and and former dingo Tom Wheeler -- but to help dismantle the agency's role as consumer watchdog entirely. Of course, AT&T put things a little differently in a blog post applauding the selection:

Ransomware is everywhere. And it's affecting everything, including critical systems. Sure, it's kind of humiliating to be locked out of your smart TV, but hospitals are being locked out of patient records and --in a new twist -- hotel guests are being locked out of their rooms.Then there's something like this, where the chain of evidence is disrupted by ransomware purveyors.

I'm not sure there is a more annoying group of stories about trademark protectionism than that of the "12th Man." What most likely assume is a common term at football games, popularly denoting the impact a raucous crowd can have on the opposing team, is actually a closely guarded trademarked term of Texas A&M. So closely guarded, in fact, that the school has not only policed use of the term by other football organizations, but it has also seen fit to threaten breweries and double-amputees over their use of the term. So concerned is Texas A&M by the moral position on intellectual property, in other words, that there are no limits on how it will act to protect its trademark.That includes violating someone else's intellectual property, it seems. It appears the university is being sued for copyright infringement after having posted on its website a large swath of an unpublished book by an author on the history of Texas A&M, all in order to bolster its own claims on the trademark for the "12th Man."

It certainly looks for all the world like Denuvo is unraveling as a valid option for DRM in video games. The software, once described as the final solution to piracy, has had its defenses cracked in time intervals following an exponentially shorter curve. For how long it would take to crack a Denuvo-protected video game, reality went from "never", to "months", to "less months" in the case of the latest Doom game. After Doom was cracked, and after the developer removed Denuvo from the software via a patch, the makers of Denuvo spun it as a victory, stating that developers were protecting their games during the early release window and then removing it later.But then Resident Evil 7, protected by Denuvo, was cracked in under a week's time. With its spin halted by this new reality, Denuvo's response has changed slightly to: hey, it could be worse!

For some time now, New York Attorney General Eric T. Schneiderman has been taking broadband companies to task for advertising broadband speeds they consistently fail to deliver. Last year, Schneiderman's office brought in Tim Wu, Columbia professor and the man who coined the term net neutrality, to help dig into the data. With Wu as the AG's "senior lawyer and special adviser," Schneiderman sent letters to NYC area broadband incumbents Verizon, Cablevision and Time Warner Cable -- questioning whether they actually deliver the speeds they advertise.This morning, Schneiderman made his findings clear via a lawsuit against Charter Communications, which accuses the cable giant of "defrauding" millions of customers by advertising broadband speeds it's incapable of delivering. According to the AG's compiled data and full complaint (pdf), Charter routinely and consistently advertised "fast, reliable connections" that were anything but:

I realize that there are much bigger issues at hand right now, but those of us who follow copyright, patent and trademark policy have been somewhat perplexed about what a Trump administration might do on that front. The issue was basically entirely ignored by Trump and his campaign during election season. And because of that, you now have lots of organizations on all sides of the debate pressing Trump to simply buy into their views of intellectual property, no matter how inane.However, I recently came across a piece at Business Insider, entitled "Why intellectual property theft is one of the biggest crimes threatening the US economy," that was so clueless of the actual issues related to intellectual property, that I went to see who wrote it -- only to discover that the author, Diana Furchtgott-Roth, was on Trump's transition team (something that is not disclosed by Business Insider for unknown reasons). This does not bode well. The whole article is problematic and confused, so let's dive in.

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The Intercept has obtained another secret document -- this one pertaining to the FBI's confidential informant program. The sprawling web of so-called Confidential Human Sources (CHS) is examined in multiple posts at the site. (The document, unfortunately, consists of multiple photos of the source pages, so it won't be embedded below.)In addition to things already known about the FBI's aggressive pursuit of informants -- including using the CBP to push incoming foreigners to act as informants by threatening to withhold travel privileges or approval of visa applications -- there's much, much more contained in the FBI's guidelines.One of the interesting aspects is the government's payment of informants. Considering the FBI has more than 15,000 informants in its network, there's always the possibility evidence produced by CHSs could be challenged if it appears the FBI is using private individuals to bypass warrant requirements (with "private" searches) or otherwise routing around legal restrictions pertaining to its investigations.From the information obtained, it appears the FBI's inelegant workaround is to obscure the money flow in order to head off questions of propriety.

As we've noted a few times, the Trump administration and new FCC boss Ajit Pai have made it abundantly clear net neutrality protections will be going the way of the dodo under their watch. Given the threat of activist backlash and the logistical complications of rolling back the rules via the FCC, neutrality opponents' (like Pai) first step toward eliminating net neutrality will likely be to simply refuse to enforce them. From there, ISPs have been lobbying Congress to pass new laws that either hamstring regulatory authority, or pretend to protect net neutrality while actually doing the exact opposite.For example, the House last week quickly passed a trio of new bills that would not only allow Congress to roll back Obama-era regulations (including net neutrality) en masse, but would give Congress effective veto power over future regulations from a number of regulatory agencies (including the FDA, EPA, and FCC). But there's also indications the GOP is cooking up a Communications Act rewrite with an eye toward weakening the FCC's authority over industry giants like Comcast, Verizon and AT&T even further.Over at Vox, readers were recently informed that "A Republican bill could be our best chance to save net neutrality." According to author Timothy Lee, we need Congress to write a quality set of net neutrality protections to establish permanent protections, avoiding the partisan patty cake that occurs each time FCC oversight shifts:

Last May, Techdirt wrote about a draft version of a study of how China deploys its vast "50 Cent Party" propagandists -- named for the amount of money they are supposedly paid for every post -- to control discourse online. The final version of the paper, entitled "How the Chinese Government Fabricates Social Media Posts for Strategic Distraction, not Engaged Argument," has now appeared, and it includes a fascinating appendix:

The Denuvo saga has been impressive on a couple of levels. The DRM software's public cycle was notable first in that game-cracking groups, notorious for their confidence in their own abilities, initially sounded the alarm over Denuvo's status as an anti-piracy unicorn that would never be broken and would lead to the end of software piracy. That happened in January of 2016. By August, Denuvo was being broken by other cracking groups. By the time winter rolled around, game developers, including developers of AAA titles, were pushing out quiet updates to games to remove Denuvo from their software entirely. Denuvo's makers, meanwhile, spun this as a success story, suggesting that developers were chiefly using Denuvo to protect games during the initial release cycle and then removing it afterwards.But that thin thread of relevancy appears to have snapped, relegating Denuvo to the same scrap pile as every other form of DRM ever tried, now that a cracking group has successfully cracked a Denuvo-protected game in five days' time.

Law enforcement keeps bumping into Tor, as Techdirt has reported many times over the years. So it's understandable that the authorities are always looking for ways to subvert and circumvent the extra protection that Tor can offer its users when used properly. For obvious reasons, we don't often get to hear exactly how they are doing that, but a fascinating post on the Dutch site Buro Jansen & Janssen purports to give some details of what happened when the country's secret service tried to recruit a Tor admin. First, a caveat. The site says:

For obvious reasons, politics and government are on just about everyone's mind at the moment, prompting a vast range of reactions and opinions. A lot of people who share a desire for change are divided not only by what form they think that change should take, but by what methods they think should be employed to achieve it. Former Senate staffer and long-time Techdirt friend Jennifer Hoelzer recently wrote a column entitled Your Government Won't Change... Unless You Do and this week she joins us on the podcast to delve further into this idea and what it means for optimists, cynics, pragmatists and everyone else.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.

The new boss is not the same as the old boss. While Obama was routinely terrible at keeping his promise to run the Most Transparent Administration, positive changes still resulted in the aftermath of the Snowden leaks. The intelligence community is more open than ever -- but then we're comparing a barely-cracked door to one that has been shut, locked, and bricked over for years.Now that Trump's in charge, it looks as though transparency and accountability aren't ideals closely held by his administration. While Trump has portrayed himself as a populist, there's very little being done currently that suggests the public -- including members employed by the government -- is welcome to participate in the process. The public has outlived its usefulness. Post-election, it just doesn't have much to offer someone who appears to believe he was elected "Boss," rather than "Top Public Servant."Executive orders and presidential directives are being issued without legal guidance or consultation with the agencies affected. And the national security framework is being heavily altered by a man best known for running a highly-partisan website. Steve Bannon, Trump's chief advisor and former head of Breitbart, is being given a seat at the "Adults" table for National Security Council meetings.This isn't totally unusual. Obama often invited his advisors to these meetings. What Obama didn't do was guarantee them a spot at the head table, much less do so at the expense of actual national security officials. This is what National Security Council meetings look like now, under the new president.Bannon's spot is guaranteed. (This, despite reports that Bannon must be approved by Congress. Nothing in the law says Council members need to be confirmed.) But the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff are only invited if Trump feels they should be there. This is an incredibly odd -- and possibly dangerous -- situation. Two officials considered essential to national security decisions aren't guaranteed a chance to offer their insight in national security meetings.Worse, Bannon's apparently permanent position in the NSC has resulted in him obtaining far more power than presidential advisors normally have. His efforts are further burying national security efforts under thick, black layers of opacity. The council meetings will continue. But it appears any record-keeping will not.

No one likes it when a new boss takes over the office and starts acting like the entire operation can be turned around in a matter of days, if not hours. A "can do" spirit is overrated, especially when it's possessed by someone who knows almost nothing about the day-to-day business or, indeed, anything about this sort of business in general.But that's what we have going on here. Within days of taking over the job, the new President has unleashed multiple orders and directives to FIX EVERYTHING… with details to follow sometime between "shortly" and "never." The plan to "make America great again" involves:

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Mike covered Twitter's release of two FBI NSLs it had received in the last few years -- more evidence that the USA Freedom Act, if nothing else, has made review of NSL gag orders more timely and the orders themselves more easily challenged.Not that there hasn't been significant pushback from Twitter along the way. The social media platform sued the government in 2014, claiming that the de facto government-imposed secrecy was a violation of the company's First Amendment rights.It can discuss two of the NSLs it received now, and it's revealing that the FBI is still asking for far more than it should when issuing these.

Paul Alan Levy is once again reporting on stupid legal threats made by a stupid company with a stupid non-disparagement clause hidden deep in its clickwrap. In addition, there's an apparently stupid lawyer involved.I do not use the word "stupid" lightly.First off, any company that thinks it's a good idea to hide a non-disparagement clause in its contractual agreements deserves to be called "stupid." There's no better way to set your reputation on fire than to demand that customers never criticize you, no matter how terrible your goods or services are. Well, there is one "better" way: enforcing it.That's what iGeniuses, an Apple device repair company, did.

Here it comes -- the exact sort of response Trump was looking for when he issued his "Standing Up for Our Law Enforcement Community" edict during his first couple of days in office.

One of the slogans used by those in favor of the UK leaving the European Union -- aka Brexit -- was that it would allow Brits to "take back control." In particular, it was claimed, Brexit would stop the European Union and its top court from "imposing" their decisions that took precedence over national laws. It was an appealing slogan for many -- a bit like "Make America great again" -- but as with other appealing slogans, with time it proved rather hollow. In the wake of the UK referendum in favor of Brexit, the British government is faced with the task of coming up with large numbers of trade deals that will somehow compensate for the almost-certain loss of preferential access to the EU. Naturally, the most important of these "new" trade deals is with the US. Unfortunately, the British negotiating position is fatally undermined by the fact that the UK is desperate for a deal, whereas the US doesn't need it at all. Inevitably, then, the US will get to dictate its terms, and UK government will be forced to accept them, however bad they are, because it has no alternative. So much for "taking back control."Rather belatedly, people are beginning to wake up to what that is likely to mean in practice. Here, for example, is an analysis on BuzzFeed of a key problem with the UK government's plan to sign lots of new trade deals to plug the gap left by exiting the EU:

The (still) new Librarian of Congress created a bit of a fuss last year in effectively forcing the existing Register of Copyrights, Maria Pallante, (the head of the US Copyright Office) out of a job. Pallante has since (of course) found a new gig heading up an industry trade group, the Association of American Publishers, with a fairly long history of being against the public, against the internet, against the blind and against fair use.The removing of Pallante kciked off a bunch of ridiculous conspiracy theories that made little sense and had almost no basis in reality. It's pretty clear that Pallante was removed from her job because she had actively, and publicly, reached out to Congress to ask that she no longer have to report to Hayden. That seems like fairly basic insubordination and a fairly standard reason why a boss might fire you.Either way, the fuss over Pallante losing her job resulted in Hayden promising to listen to all stakeholders about who should replace Pallante. To that end, she launched an online survey asking people what they'd like to see in a new Copyright Office boss. Frankly, this... feels kind of gimmicky and silly. Hayden got the job she got because she actually understands a lot of these issues. Yes, she should absolutely be listening to the public and weighing lots of thoughts, but an online survey... just feels like the wrong mechanism. And, of course, such things are prone to ballot stuffing (from all sides). If you look around, it's not hard to find some fairly crazy and "not-quite-in-touch-with-reality" groups and individuals who are telling people just how to stuff the ballot box, including some nonsense that completely misrepresents the role.So I'm not going to tell anyone how they should fill out the survey, but I would suggest that people think carefully about what role the head of the Copyright Office should play. Should it be a job where the focus is on protecting the interests of a few gatekeepers who have spent years sucking up the copyrights of actual creators while claiming to represent artists? Or should it be someone who is focused on the actual job of the Copyright Office, such as modernizing the role of the copyright office, making it easier to research who holds copyrights on what works, and who is actually focused on the core principles of copyright law -- that it promote the progress of science -- as laid out in the Constitution?The online survey closes tomorrow, Tuedsay January 31st (possibly today by the time you're reading this), so please get your thoughts in sooner rather than later.

Techdirt stories about China have been relentlessly grim in recent years, offering a depressing vision of an online world under ever-greater surveillance, with correspondingly more systems for censoring every digital thought. But it's important not to get too apocalyptic, and to remember that life goes on. Just like their counterparts in the West, people in China are using the Internet for more and more of their daily lives. Arguably a greater problem than government surveillance for most people is the lack of privacy protections under Chinese law, which has led to highly-personal online information routinely being gathered and sold by third parties.In this context, the Caixin site has details of what it calls a "landmark privacy case" that may help to rein in some of that widespread abuse. The original complaint was brought by Weibo, China's version of Twitter, against an erstwhile partner, Maimai, which offers an enterprise chat app of the same name.

Some Playstation Network users tried to use Sony's messaging system to transfer child porn back and forth. The ad hoc Playstation Playpen was reported by users, and Sony went digging into their messages and discovered illegal images, which it then -- as it is statutorily required to do -- turned this information over to law enforcement and reported it to NCMEC (National Center for Missing and Exploited Children). Unsurprisingly, this led to the arrest of one of those trading illegal images.So far, there's nothing surprising about this chain of events, much less the court's denial of the defendant's motion to suppress. What is surprising is the court's claim that the Fourth Amendment doesn't protect PSN users' data and communications.

Okay, let's start this out by admitting that there are plenty of reasons that people really dislike Uber, and I know that some people have a kneejerk hatred for the company. For a variety of reasons, in some people's minds, Uber represents the very worst of Silicon Valley. While I do think that the company has had some issues -- especially around privacy -- many of the complaints around Uber have been greatly exaggerated or distorted. But none have been quite as ridiculously distorted and exaggerated as the online reaction Saturday night to Uber's decision to drop its infamous "surge pricing" at JFK due to protests there. That resulted in a "#DeleteUber" hashtag going viral and being passed around by many, many people -- including many of my friends who I normally agree with on most things.The whole thing doesn't make any sense to me and seemed quite ridiculously unfair to Uber (and, sure, some will argue that the company deserves whatever shit it gets, but to me it lessens people's credibility when they throw a fit over something where it appears they took things entirely out of context). So here's the background. As you are, by now, no doubt aware, on Saturday night there were protests all around the US, mainly at major airports, concerning people who were arriving from overseas at those airports, and being barred (or worse, sent back on other flights) in response to President Trump's new executive order concerning individuals born in seven particular countries. As part of this, the NY Taxi Workers Association announced a one-hour work stoppage to protest the executive order:

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Over the last few months, we've had a very, very small, but still vocal group of folks in our comments who have gotten angry every time we've been critical of Donald Trump -- even when we were making nearly identical complaints about him as we did about Barack Obama and Hillary Clinton. That group of people probably won't like this post very much, though I do hope they'll read it with open minds. We're not a political blog. We cover technology and innovation, as well as the legal, economic and policy issues related to those things. Over the years, that's included issues related to civil liberties and civil rights. We don't see these things as being separate. They are all connected and intertwined. We've even spent plenty of time discussing immigration, though focusing on high tech and entrepreneur immigration.But I don't think there's any need for me to try to justify why I'm making this post on Techdirt today. This is about humanity. And if you want to complain in the comments that you don't want to read this on a "tech" site, well, then maybe take a second and think about what this says about you. Basically my entire family came to America between around 1890 and 1920 -- most of them escaping religious persecution elsewhere. My great grandmother had to hide in the bottom of a boat to escape from where she lived. Many came through Ellis Island, and were welcomed into America. My grandfathers built up businesses here. One fought bravely against Nazis (literally) in World War II for the US in Europe and North Africa, and came back to the US and built a company that (among other things) was a huge supplier for the Boy Scouts of America. While they may have struggled at times, my family came to America and was embraced by America, thrived in America and has always loved America. My wife is an immigrant. Her family moved here when she was young to give her and her siblings a better life. And that's what they found. America embraced them and they embraced America back. They're all US citizens.All weekend long, I've been reading all sorts of accounts about President Trump's executive order. Some of it has been thoughtful. Some of it has been hysterical. Some of it has been painful. Some of it has been ridiculous.But it all comes back to one thing: this is about our humanity.The "excuses" that some have been spewing for the executive order make no sense. They say this is about "safety," yet there is no evidence that the people being kept out were a risk to our safety. As many have noted, not a single terrorist attack has come from people from those countries. They say this is about "extreme vetting" but ignore that refugees already go through a ridiculously long and thorough "extreme vetting" process that can take years. They say that this is just an "inconvenience" to a "small group" of people, ignoring that they are basically upending the lives of entire families -- families including those with permanent resident status, who have been valuable, contributing members to our country for years and years and years.This is madness.They say that this is necessary to protect us at home, but even ignoring everything above, it's hard to see how this doesn't make us less safe. How can anyone read this essay by Kirk Johnson and not realize how much harm we're doing. Johnson has devoted a big part of his life to helping Iraqis who literally put their lives at risk to help Americans, and then were ignored by America. Read what he's written and ask yourself what foreigner will sign up to help America again in the future?

We've become accustomed to the NSA's infamous Glomar responses. The agency is fond of telling FOIA requesters that it's not saying it has the sought-after documents on hand, but it's also not not saying that either. It's the public records Schrödinger's box, where requested documents lie in a dual state of existence and nonexistence, supposedly because any hint either way would rend the national security fabric in twain.Brendan O'Connor of Gizmodo reports that a January 17th response to his FOIA request contains some new additions to the NSA's usual Glomar.

The pointless "six strikes" plan -- a hilarious "voluntary agreement" between some big ISPs and the MPAA & RIAA is no more. It's dead. It never should have lived, and of course, the MPAA is now blaming everyone but itself for the failure -- and we'll get to that. But first, some background.As you may remember, back in 2011, after significant direct pressure from the White House, many of the big ISPs and the MPAA & RIAA came to a (ha ha) "voluntary" agreement on a six strikes program to deal with "repeat infringers." There was a lot of history behind this, which we won't rehash, but the shorter version is that, for many years, the MPAA & RIAA have stupidly believed that if you could kick people off the internet (completely) if they're caught infringing three times, that would magically make piracy go away. They got a "three strikes" law passed in a few countries, starting with France. It was a complete disaster, as basically everyone who wasn't from the MPAA and RIAA predicted.In the US, it became clear that there wasn't the political appetite to push through a three strikes law, so instead parts of the government, starting with the White House, started putting tremendous pressure on ISPs to work out a deal. The negotiations took a very, very long time. There were lots of rumors about them and then radio silence -- until the "six strikes" deal was announced. The "compromise" was that (1) it was six strikes instead of three and (2) after six strikes... nothing happened. The key aspect of the three strikes plans the legacy entertainment industry had pushed was that you lose your internet connection. But the ISPs, rightfully, considered that a complete dealbreaker and basically refused any deal with a cut off.Of course, just months after the agreement was reached, the whole SOPA/PIPA thing happened, and ISPs realized that they probably could have pushed back even harder and not agreed to a crummy deal. The implementation of the plan was delayed repeatedly, and it was believed that some of the ISPs wanted to renegotiate post-SOPA.The plan finally went into effect, and just as lots of people predicted, it had no real impact. Just as everywhere else where this plan went into effect, people who really wanted to find infringing works continued to do so. They just found ways of avoiding being spotted. It certainly didn't magically make people want to go out and buy stuff. The organization that was set up to manage the six strikes program, the Center for Copyright Information (CCI) bravely put on its best Baghdad Bob beret and insisted that the plan was working great -- even as leaked documents showed that Hollywood knew from early on that the plan was a dud.And now it's dead:

A year ago, Techdirt wrote about the melodramatically-named "Privacy Shield." Under EU data protection laws, the transfer of EU citizens' personal data is only legal if the destination country meets certain basic conditions for data protection. Signing up to Privacy Shield is designed to allow US companies to meet that requirement. The earlier framework, called "Safe Harbor," was thrown out by the EU's highest court, the Court of Justice of the European Union (CJEU), largely because of NSA spying on data flows. Privacy Shield was hurriedly cobbled together because, without it, the vast flows of data across the Atlantic that occur all the time would be much harder to square with EU laws.However, since the NSA has not stopped spying on data flows, some in the EU feel that Privacy Shield offers as little protection for personal data as Safe Harbor. This led the Irish civil liberties group Digital Rights Ireland (DRI) last October to ask the EU's General Court -- one of the more obscure courts of the CJEU -- to annul the Privacy Shield framework, arguing that it too lacks adequate privacy protections. Although there are still some procedural matters to be settled first, largely to do with whether DRI has standing to bring this legal action, the case is considered a serious enough challenge to the Privacy Shield framework that the US government is getting involved directly:

This week our first place comment on the insightful side comes in response to Tim Cushing's post about the US's trajectory towards becoming a police state. That One Guy zeroed in one particular police comment and offered a fiery rebuttal:

Five Years AgoThis week in 2012 was all about the fallout from SOPA/PIPA, and the pivot to focusing on new battles. The SOPA supporters who own major media networks were somehow complaining they couldn't get their voices heard, while movie theatre lobbyists were continuing to make up facts and a very confused CreativeAmerica was still campaigning for SOPA on the basis of needing it to take down Megaupload — despite that being the other big battle of the week because Megaupload had just been seized without SOPA.On that front, we saw the chilling effects as other companies began turning off useful sharing services, and began learning interesting tidbits from the indictment. Some artists spoke out in opposition, with Jonathan Coulton tweeting and blogging against the seizure and Dan Bull releasing one of his always-excellent protest songs. But Megaupload wasn't the only battlefront: we also saw the backlash against ACTA begin to build, with the Polish government seeing SOPA-like protests (and calling it "blackmail") followed by that epic moment when Polish politicians in parliament donned Guy Fawkes masks in protest themselves. And as if all that wasn't enough, we also had to contend with the TPP, support of which was laced into Obama's state of the union address, prompting public interest groups to speak out about an upcoming secret meeting on the deal.Ten Years AgoThis week in 2007, the big copyright fight was still over DRM. The RIAA was complaining about how people thought it looked evil, Blu-ray's DRM was rapidly cracked by the same hacker who beat HD DVD, the licensing group behind AACS admitted that DRM is not in fact a meaningful barrier to piracy, and a fight was breaking out over Apple's FairPlay DRM in Norway. On the plus side, we saw a couple positive court rulings, one further defending the right to anonymity online, and another not just protecting but potentially expanding the safe harbor protections of CDA Section 230.Fifteen Years AgoThis week in 2002 we were still addressing a few more quaint copyright questions, like whether sharing abandonware is piracy. Beset by lawsuits, KaZaa was selling its site and software to an Australian company. Taxis were beginning to adopt GPS, the future of free web email seemed uncertain, PC-based e-voting was being tinkered with, and we got an early glimpse into the iron-fisted secrecy of Apple. Oh, and Techdirt was nominated for a Bloggie award.Two-Hundred And Sixty-Three Years AgoThis has little to do with Techdirt topics, but it's a fun and interesting fact nonetheless: it was on January 28th, 1754 that Horace Walpole coined the word "serendipity" in a letter to Horace Mann, basing it on an old name for Sri Lanka used in a Persian fairy tale.

In the last few months, we've seen multiple internet companies finally able to reveal National Security Letters (NSLs) they had received from the Justice Department, demanding information from the companies, while simultaneously saddling those companies with gag orders, forbidding them to speak about the orders. It started last June, when Yahoo was the first company to publicly acknowledge such an NSL. In December, Google revealed 8 NSLs around the same time that the Internet Archive was able to reveal it had received an NSL as well. Earlier this month, Cloudflare was finally able to reveal the NSL it had received (which a Senate staffer had told the company was impossible -- and the company's top lawyer was bound by the gag order, unable to correct that staffer).And now we can add Twitter to the list. On Friday, the company announced that the gag order on two NSLs had been lifted. There's one from 2015 and another from June of last year. Twitter appears relieved that it's finally able to reveal these, but quite frustrated that it was gagged at all.If you don't recall, Twitter has been much more aggressive than basically all of the other tech companies in challenging these gag orders. Back in 2014, Twitter sued the government, claiming it was a First Amendment violation to enforce these gag orders. That was after most of the other major internet companies had come to an agreement over how and when they could report such requests. Twitter, thankfully, felt that the agreement between the DOJ and internet companies was way too stifling and has fought it:

When it comes to trademark disputes involving alcohol companies, we should all agree by now that things tend to get really, really silly. Too often a reversion to protectionism causes company lawyers to stretch the plain meaning of words on matters of similarity and the potential for customer confusion. The latest example of this comes to us from South Africa, where the company behind Jose Cuervo tequila attempted, and failed, to block the trademark registration for Il Corvo branded wine.

Some more inadvertent transparency has resulted from a FOIA lawsuit. Two years ago, the DOJ released a bunch of heavily-redacted documents containing complaints about immigration judges to the Public Citizen Litigation Group and the American Immigration Council. Withheld at the time -- or so the DOJ thought -- were the names of the judges named in the complaints.But that's all history now. Even though the DOJ and the American Immigration Council are still litigating over the legality of redacting the judges' names, those arguments have been rendered irrelevant. As Betsy Woodruff of The Daily Beast reports, additional research work by an immigration lawyer has uncovered the judges' supposedly redacted names.

For all of the studies that often appear almost fervent in their attempts to find any thread of a link between violent video games and real life tendencies to violence, one of the standouts in the crowd has been Brad Bushman. Bushman last graced our pages showing how some combination of candy and loud noises showed that teenagers who had played a violent video game ate more bad food and were aggressive towards others in the immediate aftermath. This was used to essentially claim that violent video games were bad for teenagers, despite longer-term studies involving more participants coming to the opposite conclusion.More to the point for this post were accusations from Bushman's peers that his research methods were generally flawed and that he was known to pick and choose which results from his experiments he wanted to include in the final analysis. It seems the study we discussed in that last post wasn't the only study in which Bushman has done this, as a 2012 research paper Bushman authored, delightfully entitled Boom, Headshot!?: Effect of Video Game Play and Controller Type on Firing Aim and Accuracy, has finally been retracted by the journal Communication Research.Now, the stated reason for the retraction is that there were some questions from peers about the data used in the paper and that Bushman could no longer produce that data for analysis, hence the retraction. That's a barely accurate description of what actually happened regarding the paper.

It's America first, everyone else second. That's the new administration's message. An executive order full of disturbing mandates contains a proposed rollback of privacy protections extended to foreign residents' personal information, as ProPublica's Julie Angwin pointed out on Twitter.Here's the section detailing the clawback of privacy rights from President Trump's "Enhancing Public Safety in the Interior of the United States" executive order.

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Charter Communications just got done spending $79 billion to acquire Time Warner Cable and Bright House Networks. And like most telecom megamergers, the promises made before the deal (more jobs! better service! incredible new innovation!) have only a fleeting resemblance to what's actually happening in the real world. Instead, acquired markets have enjoyed frozen broadband deployments, rate hikes and scaled back social media support. With Charter already having among the worst customer service in any industry in America, support in the wake of the merger has been precisely what you'd expect.With the ink barely dry on that deal, the telecom sector is looking to consolidate even further. Charter stock took a nice joy ride this week on the news that Verizon has reached out to Charter to merge, consolidating the sector even further. The deal would create a telecom giant the likes of which the sector has never really known:

Copyright trolls operate on a precarious edge.They have to find enough people willing to fall for their threat settlement letters to be profitable, while at the same time not causing enough of a stir to be noticed by the general public or risk backlash. Quite often, copyright trolls do indeed cross this line. It's not all that often, however, that they cross it in spectacular fashion.Yet that appears to be exactly what they've done in Finland, where so many internet account holders have been sent threat letters that both local law enforcement groups and the national government have been forced to respond.

It looks as though this administration may be the Decrypto Party. Trump's pick for Attorney General has already made it clear he thinks asset forfeiture is a damn good thing for the American public, even if it often deprives the public of their property without evidence of criminal wrongdoing or providing a valid avenue of recourse.Now, he's (once again) confirmed encryption shouldn't keep law enforcement from accessing devices. The EFF reports that Sessions strongly hinted he's in favor of encryption backdoors during his confirmation hearing.

As Techdirt readers know, the battle to provide open access to the world's research has been going on for many years now. Despite the clear benefits of sharing information freely, the top academic publishers are still resisting, which probably has something to do with the 35% profit margins they currently enjoy. There have been various attempts to force their hand, notably through boycotts, but these have been disappointingly ineffective so far. Funding organizations have helped by requiring that any work they fund should be published as some kind of open access, but often they have been rather timid in their demands and enforcement. Against that background, the following is noteworthy:

Last year, we wrote about a bizarre situation in Germany, in which the incredibly thin-skinned Turkish President Recep Tayyip Erdogan, had discovered a little-used, mostly forgotten German law, saying that it was illegal to insult a foreign leader, and used it to go after a German comedian. Erdogan, of course, had been filing thousands of lawsuits within Turkey against people who mocked or insulted him, which resulted in people around the globe mocking and making fun of Erdogan. But the fact that he dug up this mostly forgotten law created a bit of a diplomatic mess at the time for German Chancellor Angela Merkel, who was trying to play nice with Erdogan diplomatically, for the sake of helping with the flood of refugees from the Middle East. The weak "compromise" was that Merkel allowed the case to move forward, leading to a sad ruling from a German court, barring the comedian from mocking Erdogan, though a federal investigation was later dropped for "lack of evidence."However, part of the compromise suggested at the time was that Merkel would allow that case to move forward, but would work towards getting that law off the books later. And apparently, that time is now. The German cabinet has said that the law is being scrapped.

As companies and governments increasingly hoover up our personal data, a common refrain to keep people from worrying is the claim that nothing can go wrong -- because the data itself is "anonymized" -- or stripped of personal detail. But time and time again, we've noted how this really is cold comfort; given it takes only a little effort to pretty quickly identify a person based on access to other data sets. As cellular carriers in particular begin to collect every shred of browsing and location data, identifying "anonymized" data using just a little additional context has become arguably trivial.Researchers from Stanford and Princeton universities plan to make this point once again via a new study being presented at the World Wide Web Conference in Perth, Australia this upcoming April. According to this new study, browsing habits can be easily linked to social media profiles to quickly identify users. In fact, using data from roughly 400 volunteers, the researchers found that they could identify the person behind an "anonymized" data set 70% of the time just by comparing their browsing data to their social media activity:

Last April, a few legal advocacy groups banded together to sue the US government over PACER fees. PACER is the court system's electronic access system whose fees are only supposed to help it break even on the "costs" of delivering courtroom documents in PDF form. Suffice to say, the fees exceed the costs and the money doesn't seem to be going towards making PACER a better system.To sum up very briefly, PACER:

As you may have heard, over the past few days, there's been a lot of talk about various US government Twitter feeds "going rogue" in what many believe is an attempt at a bit of civil disobedience following gag orders being sent from the White House to various federal departments and agencies, with a particular ban on social media. Soon after that came out, the Twitter feed of the famed Badlands National Park in South Dakota, started tweeting about climate change:Those tweets have since been deleted, but they certainly caused quite a stir, and there's even what claims to be a private rogue National Parks Service twitter feed that won't be silenced at @AltNatPartSer. That's apparently inspired other government employees to set up similar "rogue" Twitter accounts. As I write this, there are about two dozen such accounts on this list, with some personal favorites being the @Alt_FDA, the @RogueNASA and @AltFedCyberz. Now, it's important to state that there's no direct proof that these are actually run by federal employees, but the whole thing is fascinating to watch.But, that alone doesn't necessarily make it worthy of a Techdirt post (yes, there's a possible Streisand Effect angle on all of this, but it remains to be seen how strong that really is). What caught my eye, however, was how the National Park Service eventually explained those original Badlands tweets, telling BuzzFeed that they were done by an ex-employee who had retained his password, but wasn't authorized to tweet from the account:

Time to lock up Donald Trump? Or at least his staff?