We have often criticized the Patent Office for issuing broad software patents that cover obvious processes. Instead of promoting innovation in software, the patent system places landmines for developers who wish to use basic and fundamental tools. This month's stupid patent, which covers user permissions for mobile applications, is a classic example.On August 29, 2017, the Patent Office issued U.S. Patent No. 9,747,468 (the '468 patent) to JP Morgan Chase Bank, titled "System and Method for Communication Among Mobile Applications." The patent covers the simple idea of a user giving a mobile application permission to communicate with another application. This idea was obvious when JP Morgan applied for the patent in June 2013. Even worse, it had already been implemented by numerous mobile applications. The Patent Office handed out a broad software monopoly while ignoring both common sense and the real world.The full text of Claim 1 of the '468 patent is as follows:

America's largest sheriff's department is rolling towards an accountability train wreck. Despite years of discussing the issue, the Los Angeles County Sheriff's Department still has no cohesive policy on body cameras, nor has it taken steps to outfit its officers with the devices.This less-than-ideal situation is being made worse by deputies purchasing their own body cameras with personal funds.

We've noted time and time again how numerous websites have been killing news comments because they're too lazy and too cheap to cultivate an on-site community, and/or don't like having story errors pointed out in quite such a transparent, conspicuous location. Of course editors and publishers can never admit this is their real motivation, instead offering a rotating crop of disingenuous prattle about how they're muzzling their readers and shoving them over to Facebook because they're just so very into building relationships and are breathlessly-dedicated to improving conversation.This week Al Jazeera joined the hottest trend in media, penning a missive over at Medium about how they're banning public news comments as part of their quest to... wait for it... give a voice to the voiceless:

For those of us that advocate principles of free speech, the most hallowed battleground for that fight must necessarily be in schools. If these ideals are to win the day on the longer timeline, it will be because subsequent generations take up the banner of free speech and conversation in more numbers than do their opponents. In the West, these fights amount to issues that are indeed important, but pale in comparison to what occurs elsewhere in the world. To that end, it's as important to see how far we've come as it is to understand how far we have to go.Take Pakistan, for instance. Most of us will know that Pakistan has not taken the same trajectory in terms of speech compared to America. Differences of this sort are to be expected, but they can reveal themselves in stark ways. For instance, a local school in Pakistan with a tradition of singing John Lennon's famous song Imagine has this year decided to remove the song from the annual concert for reasons that you've likely already guessed.

We've discussed many times about how unfortunately toothless section 512(f) of the DMCA is in practice. That's the section that can supposedly be used against "misrepresentations" under the DMCA. But, in practice, nearly all attempts to use DMCA 512(f) have failed. That's why it's always so interesting to see one that is succeeding. But as law professor Eric Goldman notes, there's a case where a 512(f) claim has survived a motion to dismiss.The background to the case is a bit involved, but apparently someone named Shirley Johnson was posting YouTube videos criticizing "New Destiny Christian Center" and the "Paula White Ministries." Paula White Ministries claimed copyright infringement to YouTube and Johnson counternoticed. Paula White Ministries then sued, claiming copyright infringement over Johnson's use of images and videos in her criticism. The case was dismissed, but the judge suggested that Johnson file a lawsuit against the plaintiff for "malicious prosecution." She did so, though included in that suit was also a claim about "false copyright infringement complaints." The court dismissed those claims, noting that those are not part of a malicious prosecution claim, so a separate lawsuit was filed claiming 512(f) violations. The defendants in this case made a motion to dismiss, but the big news here is that the 512(f) claim lives on.

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Over the last few weeks, we've written a number of times about how systematically bad internet platforms are at determining how to deal with abuse online. This is not to mock the platforms, even though many of the decisions are comically bad, but to note that this is inevitable in dealing with the scale of these platforms -- and to remind people that this is why it's dangerous to demand that these companies be legally liable for policing speech on their platforms. It won't end well. Just a few weeks ago, we wrote about how Twitter suspended Ken "Popehat" White for posting an email threat he'd received (Twitter argued he was violating the privacy of the guy threatening him). From there, we wrote about a bunch of stories of Facebook and Twitter punishing people for documenting abuse that they had received.But this latest story is even slightly crazier, as it appears that abusers were taking advantage of this on purpose. In this case, the story involves Russian Twitter bots. First, the Atlantic Council wrote about Russian Twitter trolls trying to shape a narrative after the Nazi event in Charlottesville. In response, those very same Twitter bots and trolls started bombarding the Twitter feeds of the researchers. And here's where the story gets even weirder. When Joseph Cox, writing for The Daily Beast, wrote about this (at the link above), those same Twitter bots started targeting him too.And... that caused Twitter to suspend his account. No, really.

So we've noted time and time again how the vast majority of consumers support net neutrality, and the current rules on the books protecting it. Survey after survey (including several from the telecom industry itself) have found net neutrality has broad, bipartisan support. To try and undermine this reality, ISPs have spent more than a decade trying to frame the desire for a healthy, competitive internet -- free of entrenched gatekeeper control -- as a partisan debate. And they've largely been successful at it, sowing division and derailing discourse on a subject that, in reality, isn't all that controversial in the eyes of the Comcast-loathing public.This was highlighted again this week, when a broadband industry-funded study found that 98.5% of the original comments filed with the FCC oppose the agency's plan to kill net neutrality. Of the original, unique comments filed with the FCC (people that took the time to write out their thoughts instead of just signing a form letter), 1.52 million said they opposed the FCC's plan, compared with the 23,000 individuals that think gutting consumer protections was a nifty idea. Again, there's no debate here: the public (which the FCC is supposed to represent) viciously opposes this plan to dismantle Title II, and by proxy, the net neutrality rules.Large ISPs like Comcast, Verizon and AT&T have used every trick in the book to try and distort this reality, from publishing videos claiming that nobody's trying to kill net neutrality, to actively trying to con their own users into supporting gutting the essential protections. Shortly after this week's latest study was published, AT&T got right to work blatantly lying about what the study said, insisting that most of the "legitimate" comments filed with the FCC support killing net neutrality protections:

Back in 2012, we wrote about Onity, the company that makes a huge percentage of the keycard hotel door locks on the market, and how laughably easy it was to hack its locks with roughly $50 of equipment. Surprisingly, Onity responded to the media coverage and complaints from its hotel customers with offers of fixes that ranged from insufficient (a piece of plastic that covered the port used to hack the door locks) to cumbersome (replacing the circuit boards on the locks entirely) and asked many of these customers to pay for these fixes to its broken product. Many of these customers wanted to sue Onity for obvious reasons, but a judge ruled against allowing a class action suit to proceed. That was our last story on the subject.So... what happened? Well, Onity ended up springing for the fixes for some of their larger chain hotel customers, but not all of them. For the rest, it was on each hotel to decide to pay for the fix or not. Many, many of them absolutely did not and did nothing about the Onity locks on their doors, while those that did get the fix involving the plastic port cover quickly found out that the fix wasn't much of a fix at all. To see the fallout from all of that, one need only look at Wired's longform piece on the hellacious crime spree undertaken by one troubled young man, Aaron Cashatt, who managed to steal hundreds of thousands of dollars worth of stuff from hotel rooms using the afore-mentioned $50 worth of gear.The entire post is worth your time, with its fascinating look into Cashatt's background, the revelations of the Onity lock's failures, and where those two stories converged. One of the key points in all of this was that even before Cashatt started his crime spree, everyone, from Onity to the hotel chains to any member of the public that cared to know, was aware of how laughably insecure Onity's locks were, except that, for the most part, nobody bothered to do anything about it.

As multiple Techdirt stories attest, farmers do love their "ag-gag" laws, which effectively make it illegal for activists to expose animal abuse in agricultural establishments -- although, strangely, farmers don't phrase it quite like that. Big Ag -- the giant seed and agricultural chemical companies such as Monsanto, Bayer, and DuPont -- seem to have decided they want something similar for seeds. As an article in Mother Jones, originally published by Food and Environment Reporting Network, reports, it looks like they are getting it:

Earlier this year, real estate litigator and aggrieved homeowner Barbara Andersen sued Zillow for providing a lower "Zestimate" than she believed her house was worth. She alleged Zillow violated Illinois state law by portraying its estimates as appraisals, even though it lacked the proper licensing to perform appraisals. Andersen sought an injunction blocking Zillow from posting information about her home (even publicly-available information) and offering a "Zestimate" on its selling price.Andersen has just had her case tossed, although she's now representing others in a proposed class action against Zillow. At some point between February and earlier this week, Andersen's case was moved to a federal court and she's now listed on the bottom of court documents (as counsel of record), rather than up top as a plaintiff.The new lead plaintiffs are three Patels disputing Zestimates of their multi-million dollar properties. (This rearranging of plaintiffs and lawyers [and lawyers who were also plaintiffs] is unsettling, especially for those of us who learned what we know of the real estate business via repeated viewings of "Glengarry Glen Ross.")The Patels (and "others similarly situated") aren't happy with Zillow. The Patels (collectively) have multiple properties on the market, all listed at prices considerably higher than Zillow's Zestimates. They claim, as Andersen did, that Zillow violates state law by offering something homebuyers might believe is an appraisal. A variety of interconnected laws results in the Patels attempting to coax a federal court into killing Zillow's estimates. As Eric Goldman summarizes, the Patels have gone down on strikes.

We've well established that the internet of things (IOT) market is a large, stinky dumpster fire when it comes to privacy and security. But the same problems that plague your easily hacked thermostat or e-mail password leaking refrigerator take on a decidedly darker tone when we're talking about your health. The health industry's outdated IT systems are a major reason for a startling rise in ransomware attacks at many hospitals, but this same level of security and privacy apathy also extends to medical and surgical equipment -- and integral medical implants like pacemakers.After a decade of warnings about dubious pacemaker security, researchers at Medsec earlier this year discovered that a line of pacemakers manufactured by St. Jude Medical were vulnerable to attacks that could kill the owner. The researchers claimed that St. Jude had a history of doing the bare minimum to secure their products, and did little to nothing in response to previous warnings about device security. St. Jude Medical's first response was an outright denial, followed by a lawsuit against MedSec for "trying to frighten patients and caregivers."Ultimately, the FDA was forced to issue its first ever warning about the security of a pacemaker earlier this year, though the agency somewhat downplayed the potentially fatal ramifications:

We've talked a lot over the years about the importance of standing up to patent trolls. Newegg, famously, has its "Never Settle" mantra for dealing with patent trolls. And we covered the case of Fark's Drew Curtis, a few years back, who simply refused to give in when a patent troll tried to shake him down. Part of that standing firm was that when he eventually "settled" the case, he demanded that he be allowed to reveal that the settlement was for $0 (usually trolls require a gag clause on settlements to avoid anyone finding out what happened). But it appears Kaspersky Labs has taken this up a notch.Two years ago, we wrote about the patent troll with the somewhat on-the-nose name of Wetro Lan (get it? "we trollin'") that was threatening lots of companies. One company it went after was Kaspersky Labs, which it eventually sued in East Texas (naturally). Things didn't quite go according to Wetro Lan's plan. As Joe Mullin at Ars Technica explains, by the end of the case, Wetro Lan had to pay Kaspersky to get the company to agree to let the case die.During discovery, Kaspersky's lawyer was able to discover the settlements that Wetro Lan actually got out of other companies, while also making it quite clear to Wetro Lan, that it's claims in this suit were completely bogus. So then it flipped the script:

Techdirt has been covering the slow and painful attempts by the EU to make its copyright laws fit for the digital age for nearly four years now. Along the way, there have been some good ideas, and an astonishingly bad one that would require many online services to filter all uploads to their sites for potential copyright infringements. Despite the widespread condemnation of what is now Article 13 in the proposed Copyright Directive, an important new leak (pdf) published on the Statewatch site shows that EU politicians are still pushing to make the censorship filters mandatory.The document is an attempt by Estonia, which currently holds the Presidency of the Council of the EU -- one of the three main European Union bodies -- to come up with a revised text for the new Copyright Directive. In theory, it should be a compromise document that takes into account the differing opinions and views expressed so far. In practice, it is a slap in the face for the EU public, whose concerns it ignores, while pandering to the demands of the EU copyright industry.Estonia's problem is that the whole idea of forcing Web sites to filter uploads contradicts an existing EU directive, one from 2000 on e-commerce. This created a safe harbor for sites that were "mere conduits" or simply hosting material -- that is, took no active part in publishing material online. The Directive explicitly says:

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Earlier this week, we wrote about Donald Trump and Jeff Sessions bringing back the Defense Department's 1033 program, which helped militarize local police forces with surplus military equipment. We've been covering all sorts of problems with the 1033 program over the years, and people like Radley Balko have written entire books on the problem. And the previous ban on the 1033 only put a fairly narrow limit on the practice of militarizing police -- but now even those modest limits are gone.What's truly incredible, however, is the complete nonsense being used to justify this. Attorney General Jeff Sessions gave a speech about this on Monday, in which he trotted out his standard misleading and out-of-context stats, falsely claiming that there's some massive new crimewave across the country, when there's really just been a tiny bump after decades of decline in crime rates (the use of percentages by Sessions shows the he likely knows the absolute numbers are so meaningless that he has to mislead with percentages working off a small base).But, even with the usual misleading claims about violence and violence directed towards police, I still never expected him to... point to Houston and the impact of Hurricane Harvey as a reason for increased police militarization. But that's exactly what he did:

Let's not mince words: the FCC's plan to gut net neutrality protections in light of severe public opposition is likely one of the more bare-knuckled acts of cronyism in modern technological and political history. That's because the rules have overwhelming, bipartisan support from the vast majority of consumers, most of whom realize the already imperfect rules are some of the only consumer protections standing between consumers and giant, uncompetitive companies like Comcast. Repealing the rules only serves one interest: that of one of the least liked, least-competitive industries in America.That said, the broadband industry and the FCC keep trying to obfuscate this reality, and failing. The latest example: a new study funded by the industry itself took a closer look at the 21.8 million comments filed with the FCC so far on its plan to roll back the rules, and found, once again, the vast majority of the citizens the agency is supposed to represent oppose the FCC's plan. The full study was conducted by consulting firm Emprata and funded by Broadband for America, a lobbying front organization backed by Comcast, AT&T, Verizon, Charter and most large wireless carriers.As we've consistently reported, somebody has been backing an attempt to fill the FCC's comment proceeding with entirely bogus, bot-crafted support for the FCC's plan. There have even been bogus comments filed in support of killing net neutrality made in my name (which the FCC has said they'll do nothing about). The Emprata study found that even including this farmed detritus, the majority of the comments are in favor of retaining the rules. Including spam, bot-posts, and form letters (the latter being used by both sides), the study found 60% were opposed to the FCC's plan.But when the firm only analyzed original comments coming from actual human beings, it found that 98.5% of original comments filed support keeping the rules intact. And while form letters are utilized by both sides of this asymmetrical debate to galvanize public action, the study also found very few original comments in support of Ajit Pai and friends' handout to the telecom sector:

A federal court in Oakland, California has come to a conclusion the DOJ definitely didn't want it to reach, as Cyrus Farivar reports for Ars Technica.

Searching for stories about Sega here at Techdirt results in a seriously mixed bag of results. While the company has managed to be on the right side of history on issues like SOPA and fan-made games, it has also managed to be strongly anti-consumer on game mods and has occasionally wreaked havoc on the YouTube community, all in the name of copyright protectionism. Despite all of this, Sega has gone to some lengths to successfully craft for itself a public image more accessible and likeable than its long-time rival Nintendo.Stories like the following will put dents in that image, however. Sega recently ported its new title Sonic Mania to the PC and released it on the Steam platform. The port also included Denuvo DRM and an always-online requirement, except that it (oops!) forgot to tell anyone about either.

A case involving a bogus arrest stemming from a citizen's attempt to record officers has resulted in the denial of qualified immunity to the officers involved. The Eighth Circuit Appeals Court upheld the lower court's decision on both First and Fourth Amendment issues.Plaintiff Brian Hoyland was awakened by the sound of police activity in his front yard. Opening his door, he found officers trying to arrest his wife, who was the passenger in a car suspected of being involved in reported drag racing. This is what Hoyland did from 30-40 feet away, ultimately resulting in him being arrested for obstruction. From the opinion [PDF]:

Leaving aside the AAA publishers for a moment, the video game industry is actually starting to get really good on recognizing better ways to react to copyright infringement other than pounding their fists on their tables and knee-capping their customers with DRM. This still occurs, of course, but we've also seen stories of publishers treating pirates as potential customers with whom it's worth connecting, giving away Steam keys on torrent sites, or just playfully messing with pirates instead of screaming at them. These efforts generally are done to the tune of great PR and the humanization of a content company that can only help their businesses.And, thankfully, it's not a trend that is slowing down. Acid Wizard Studio, publishers of the game Darkwood, made some recent news by deciding to put its own game on the Pirate Bay.

The government will be paying its opponent's legal fees after needlessly drawing out FOIA litigation, the Ninth Circuit Appeals Court has decided [PDF]. The First Amendment Coalition sued the Department of Justice after it refused to produce documents discussing the legal rationale for extrajudicial drone strikes targeting American citizens.The legal memo FAC sought was the same legal memo the ACLU and New York Times sued the DOJ for refusing to release. (Or so the FAC thought. But its litigation -- along with the ACLU/NYT litigation -- made it clear the government was holding on to more than one legal memo.) In the NYT/ACLU case, the Second Circuit Court told the DOJ to cough up its justification for killing Anwar al-Awlaki, pointing to several public comments made about the drone strike by prominent US government officials. The court wasn't interested in the DOJ's arguments something publicly discussed frequently would be too "sensitive" to put in the hands of the ACLU and New York Times.The DOJ made the same arguments in this case, but the Second Circuit decision undoes its attempt to fend off FAC's legal fees claims. Factoring into the Ninth's conclusions is the leak of a white paper by the US government providing its legal analysis of extrajudicial drone strikes. This was then followed by an official release of the same white paper.This leak -- and the court-ordered release of the DOJ's legal memo to the ACLU and New York Times -- prompted the FAC to ask the district court to vacate its decision in favor of the DOJ's secrecy and award it legal fees, since it was seeking the same document. This motion was filed nearly three years ago, just to give you some idea how long the DOJ has dragged out a losing legal battle.The Appeals Court notes the documents might not have been released by the government if it hadn't been for its entanglement in multiple FOIA lawsuits. As the court points out, the fact that the government voluntarily handed the documents to the FAC after the drone strike white paper's official release doesn't absolve it of racking up FAC's legal fees for no apparent reason.

For years now, we've discussed why it's problematic that people are demanding internet platforms moderate more and more speech. We should be quite wary of internet platforms taking on the role of the internet's police. First, they're really bad at it. As we noted in a recent post, platforms are horrendously bad at distinguishing abusive content from those documenting abusive content and that creates all sorts of unfortunate and bizarre results, with those targeted by harassing content often having their own accounts shut down. On top of that, the only way to actually moderate content at scale requires a set of rules, and any such set of rules, as applied, will create hysterically bad results. And that's because the scale of the problem is so massive. It's difficult for most people to comprehend even slightly the scale involved here. As a former Facebook employee who worked on this stuff once told me, "Facebook needs to make one million decisions each day -- one million today, one million tomorrow, one million the next day." The idea that they won't make errors (both of the Type 1 and Type 2 category) is laughable.And it appears that the scale is only growing. Facebook has now admitted that it shuts off 1 million accounts every single day -- which means that earlier number I heard is way low. If it's killing one million accounts every day, that means it's making decisions on way more accounts than that. And, the company knows that it gets things wrong:

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We've always had difficulty understanding why copyright or trademark law should even have "criminal" components to them. It seems fairly obvious that they can be handled easily enough with civil actions, without involving law enforcement. And this matter is only reinforced every time law enforcement tries to get involved in copyright and trademark enforcement. They seem oddly... almost unable to comprehend that infringement is different than theft and that it requires a different thought process and analysis. Time and time again, we see this crop up, both in the US and around the world. And it remains consistent no matter who is in charge. Under Obama, the DOJ was terrible on intellectual property issues, and that's now carrying over to the Trump administration.Deputy Attorney General Rod Rosenstein just gave a talk at the Interpol International Law Enforcement IP Crime Conference -- which, as you can imagine, is not a place where nuanced discussions on infringement are expected. And Rosenstein lived down to low expectations in delivering a speech full of silly analogies and misleading statements that show little understanding of the deeper underlying issues when it comes to copyright, trademark and patents. It starts out with a particularly silly analogy:

For years, HBO and owner Time Warner fell into the trap of telling customers what they wanted instead of the other way around. You might recall that HBO and Time Warner spent years waging a rather scorched earth assault on piracy and other "unauthorized viewing," going so far as to poison show torrents and shut down "Game of Thrones" viewing parties. A major problem with this approach is that HBO wasn't fully providing pirates an alternative. While HBO was offering streaming to existing cable customers, it spent years ignoring consumer calls for a standalone streaming video platform that didn't require cable.There were any number of reasons for this myopia, the biggest being that like any good legacy company, HBO and Time Warner execs were afraid of wounding the traditional cable cash cow (even if said cow was already showing signs of notable mortality at the time). More specifically, HBO was afraid of hurting the cozy, heavily-subsidized relationship HBO enjoys with many cable providers, who all but give the channel away on occasional promotion. So while offering a standalone streaming platform was essential in evolutionary context, HBO consistently insisted it just couldn't make the economics work for such an option.So while Time Warner and HBO execs were busy trying to downplay cord cutting as a fad, the piracy of HBO programs continued to smash BitTorrent swarm and other piracy records. That was until March of 2015 when HBO was forced to finally acknowledge the changing tides and launched HBO Now, its standalone streaming app. Fast-forward a little more than two years, and that decision is looking pretty good now in hindsight:

In a move that will have major implications for the online world in India and beyond, nine Supreme Court judges have ruled unanimously that privacy is a fundamental right under the Indian Constitution. As part of a decision spanning 547 pages (pdf) they declared:

We've noted time after time how the trend du jour in online media is to kill your news comment section, muzzle your valuable on-site community, then couch the decision under all manner of disingenuous prattle. Reuters and Recode, for example, killed visitor news comments several years ago because, they claimed, the companies really value conversation. The Verge also tinkered with killing comments, purportedly because it just really valued relationships. As we all know, nothing quite "builds relationships" and gets the conversation going like a muzzle, a wave, and a swift digital kick in the ass.Other websites couch their decision to mute their users under the pretense that it's just an "experiment," and the website will return with something more interactive and wonderful down the line. More often than not, this never happens. Case in point is NPR, which announced last summer that it too would be banning all public community feedback out of a deep rooted love for building community and audience engagement:

On June 14th, the New York Times published an editorial concerning violent rhetoric being deployed during political races. In it, the author made an incredibly bad claim:

Just over a year ago, when Pokémon Go was taking the world by storm, we dedicated an episode of the podcast to discussing what made it so successful, and ended up with some differing predictions about what its future would be. Now, with the hype long and truly over but the game still far from dead (though just how far is up for debate), it's time to revisit the subject and figure out who, if anyone, was right about the future of Pokémon Go.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.

Late last year, we wrote about ridiculous charges by California's then Attorney General, Kamala Harris, against Backpage.com for "pimping." As we pointed out at the time, Harris clearly knew the case was a loser. It completely exaggerated what Backpage had done, and Harris herself had earlier admitted that she had no authority to go after an internet platform for how people used it. A judge quickly threw out the charges against Backpage... and Harris turned around and filed even more charges against Backpage's execs, including repeating the pimping charge and adding in "money laundering."As we noted at the time, the money laundering charges seemed pretty questionable. It's based on the fact that Backpage had set up a separate (and separately named operation) to handle billing. The complaint argues that this was a form of money laundering, to hide from credit card companies that the money was being spent on prostitution. That leaves out, of course, that part of the reason why Backpage likely had to set up such a structure was because Cook County Sheriff Thomas Dart had threatened credit card companies if they didn't stop working with Backpage -- a move that was later deemed to be a clear First Amendment violation against the company by Sheriff Dart.In a new ruling in the case in California, the court has thrown out nearly all of the charges -- including the "pimping" charges that were already previously thrown out. But they are allowing the money laundering charge to go forward -- though it does appear the court recognizes that the state will have a hard time winning it's case.

As you will already know, a boxing match recently took place between Floyd Mayweather Jr. and Conor McGregor. The fight itself was far better than it should have been, but you may not know it if you couldn't manage to actually see it. Much as it did in the run up to the Mayweather v. Pacquiao fight of a couple of years ago, Showtime went out and got some rather questionable injunctions against 44 sites it believed would be offering up the fight via an illegitimate stream during the live pay-per-view broadcast. That effort resulted in, ahem, only three million viewers watching the fight via illegal live streams. Thousands more downloaded video of the fight illicitly after it occurred. So, Showtime got a court to agree to questionable pre-crime activities with the result being rather mixed.But if the steady mantra from the content industries that "every infringement is a lost sale" were true, then perhaps Showtime should be thanking its lucky stars that illegal streams were available, because its own streaming service wasn't able to handle the viewership load it did have.

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In a disturbing case involving the sex trafficking of minors, the 11th Circuit Appeals Court has reached a few interesting conclusions involving digital searches and the Fourth Amendment. Included in the court's findings are rulings on the use of the All Writs Act to force Apple to unlock a device, an email warrant served to Microsoft, and warrants used to obtain a vast amount of information from Facebook. [h/t Orin Kerr]The All Writs Act received a ton of free publicity thanks to Apple's fight with the DOJ over the (forced) unlocking of the San Bernardino shooter's iPhone. Ultimately, the DOJ hired outside help to crack open the phone, abandoning its search for helpful precedent. (And, ultimately, the phone -- the shooter's work-issued phone -- contained nothing of interest.)Here, the Appeals Court finds [PDF] there's nothing wrong with using the 1789 All Writs Act to paper over holes in the 200+ years of legislation.

With its quest to gut net neutrality, privacy and other consumer broadband protections, the FCC is rushing face first toward stripping meaningful oversight of some of the least-liked -- and least competitive -- companies in America. The FCC's plan, based on flimsy to no data and in stark contrast to the will of the public, involves gutting most FCC oversight of broadband providers, then shoveling any remaining authority to an FTC we've noted is ill-suited, under-funded, and legally ill-equipped for the job. That's a real problem for a sector that's actually getting less competitive than ever in many markets.Giant ISPs and their armies of policy allies often try to frame the effort as a noble quest for deregulation, often insisting they're somehow "restoring internet freedom" in a bare-knuckled attempt to pander to partisan constituents. But by any sane measure the FCC's quest is little more than a massive gift to despised duopolies like Comcast -- at what might be the worst possible time for a severely dysfunctional industry. But there are signs that even many traditional big ISP allies think Ajit Pai's plan is absurdly extreme.Hal Singer is an economist the telecom industry has often hired to manipulate data in order to make all manner of flimsy claims (from falsely stating net neutrality stifled network investment to falsely claiming net neutrality would dramatically raise taxes). But last week even Singer came forward to acknowledge that the FCC's plan to shovel net neutrality and other ISP oversight to the FTC won't fly. While Pai has repeatedly claimed that FTC authority and existing antitrust laws are enough to protect consumers from companies like Comcast, Singer disagrees:

Using nothing more than one of the easiest things the government can obtain -- a grand jury indictment -- accused criminals can be locked out of their choice of representation. In essence, the government, right up until the Supreme Court's 2016 Luis decision, was allowed to take everything a defendant had, whether or not the property could be linked to criminal activity.What this did was make a mockery of the Sixth Amendment. Prior to even taking the case to court, much less securing a conviction, the government could leave defendants with no funds to hire a lawyer. The Supreme Court rolled this back, limiting the government to taking tainted assets. It wasn't a complete win. A complete win would have required the government to secure a conviction before taking any assets, or at least not until it was proven certain assets were tied to criminal activity.It was a limited win for the Sixth Amendment, very much restricted to the facts of the case -- one in which the government had admitted the disputed property was untainted by criminal acts. Still, it was better than leaving it untouched and giving the government the option to bankrupt defendants supposedly considered innocent until proven guilty.This precedent is starting to play a part in the lower courts. The Fourth Circuit Appeals Court has just struck down previous rulings allowing the government to seize untainted property pre-trial. The government's operating theory has been that, despite the Supreme Court ruling, untainted assets can be seized as a "substitution" for tainted assets to ensure the collection of fines and fees, as well as the replacement of any fraudulently-obtained property.The government still argued the Luis decision didn't apply. From the decision [PDF]:

Techdirt has written a number of stories about facial recognition software being paired with CCTV cameras in public and private places. As the hardware gets cheaper and more powerful, and the algorithms underlying recognition become more reliable, it's likely that the technology will be deployed even more routinely. But if you think loss of public anonymity is the end of your troubles, you might like to think again:

For some time now we've noted how poorly secured IOT devices provide a myriad of opportunities for hackers looking for new attack vectors into homes and businesses. That's of course when these devices aren't just coughing up your personal data voluntarily. Whether it's your smart fridge leaking your Gmail credentials or your internet-connected TV transmitting your personal conversations over the internet unencrypted, we've noted time and time again how IOT manufacturers consistently make privacy and security an afterthought -- one that's going to ultimately cost us more than some minor inconvenience.But in addition to the internet of broken things being a privacy and security dumpster fire, these devices are providing a wonderful new opportunity for larger ISPs looking to monetize the data you feed into their networks on a daily basis. A new study out of Princeton recently constructed a fake home, filled it with real IOT devices, and then monitored just how much additional data an ISP could collect on you based in these devices' network traffic. Their findings? It's relatively trivial for ISPs to build even deeper behavior profiles on you based on everything from your internet-connected baby monitor to your not so smart vibrator.We've long noted that while encryption and VPNs are wonderful tools for privacy, they're not some kind of panacea -- and the researchers found the same thing here:

As part of his ongoing effort to reverse everything President Obama ever did, President Trump will be rolling back the previous administration's 1033 program ban. The program allowed local law enforcement agencies to help themselves to Defense Department equipment -- often paid for with federal grants -- as long as they said the magic words (terrorism/drugs) on the application.

Over the last few weeks, we've been talking about SESTA -- the Stop Enabling Sex Traffickers Act. Part of our argument is that the bill will be completely counterproductive to its own goals. As we explained in a letter to Congress (signed by a bunch of tech companies), after two decades of watching CDA 230 in practice, it's clear that SESTA will do the exact opposite of what supporters claim it will do. But that's from the point of view of internet companies who know how the law intersects with technology.But what about experts in trafficking. In our letter, we admitted that area is not our expertise, but that we're all supportive of the idea of stopping trafficking. However, someone who is an expert in trafficking is Alexandra Levy, a law professor at Notre Dame, who works at the Human Trafficking Pro Bono Legal Center and teaches a class entirely about human trafficking. She's written up a fascinating blog post for professor Eric Goldman's blog where she explains why SESTA will be a total disaster for human trafficking.

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Seamus Hughes, the Deputy Director of George Washington University's Program on Extremism, happened across an extraordinary story -- told in warrant affidavit form -- of a man who faked up a research lab and started scoring himself truckloads of free equipment from the US government.According to the allegations in the warrant [PDF], Patrick R. Budic discovered a nifty way to exploit government excess equipment giveaways, utilizing a nonexistent company to make off with nearly $11 million in equipment ranging from GPS units to aircraft radios to hospital beds. The figure might have been much, much higher. The affidavit shows Budic tried (but failed) to acquire aircraft on more than one occasion.The setup echoes the sting operation the Government Accountability Office performed as part of its investigation of the Defense Department's 1033 program. The GAO set up a fake law enforcement agency and was able to obtain over $1 million in excess military gear before wrapping up its investigation. In that case, there appeared to be almost zero follow-up by the agencies in charge of disbursement. No one called. No one visited the fake address to verify the fake law enforcement agency's existence.Some of that appears to have come into play here. Budic -- along with David G. Rosseau, a US Navy engineer -- allegedly set up a fake nonprofit called Northridge National Laboratories (NNL) in Wyoming. According to the state's Department of State, Wyoming does not engage in much regulation of registered nonprofits. No follow-up was done to ensure the nonprofit actually existed and the only verification the state required for its nonprofit status was… the declaration it was a nonprofit on the registration paperwork. However, the principal address for NNL was Milwaukee, Wisconsin, where Budic lived.Budic also set up a for-profit company, PMR Research, and got it registered with the Government Services Administration's (GSA) award management system.Using these two companies and some allegedly false claims about being a Defense Department contractor, Budic went to work. He began exploiting the GSA's surplus property program, which allows government agencies (at all levels) and their contractors to obtain excess equipment for little to no cost.It all began to fall apart when Budic started thinking big. He ran into problems trying to acquire a Learjet. Closer vetting apparently begins when the requested property runs into the millions of dollars per unit. The specialist assisting Budic couldn't find anything verifying Budic's claim NNL was a Defense Dept. contractor "working on top secret research." Budic admitted NNL wasn't a federal laboratory "yet," but was "on its way" to becoming one. "This is how you get there," he told the specialist.Actually, this is how you get got.The GSA Inspector General stepped in and made a recorded call to Budic. Budic claimed he needed the aircraft for Defense Dept. research, claiming he had research labs "all over the place," but principally operated out of Wisconsin.Following that, Budic was interviewed by an undercover GSA agent and a Defense Criminal Investigative Service (DCIS) agent. Budic thought he was there to complain about the holdup on his aircraft order. The story started to change the more Budic talked. The million-square-foot lab Budic said NNL already owned in his earlier phone call became a lab NNL was trying to acquire. Asked where all the government equipment he already had obtained was, Budic said some was in Wisconsin but the rest of it was in California.Based on this information, the agents were able to locate the Wisconsin storage unit. Talking to the unit's owner, the GSA discovered Budic was behind on his rent and was locked out. The owner also said Budic had "offered him a laptop" in an effort to get back into his storage space. According to the owner, the storage unit contained computers, a large printer, docking stations, more than a dozen servers, and "a lot of other stuff."Undeterred by his inability to score an airplane, Budic next tried to acquire a 27' boat. He claimed in his request he was authorized to receive it under law and it would be used for "development projects pertinent to national security."As the investigation continued, Budic became more evasive. He refused to divulge the location of his apparently fake lab, citing national security reasons. He did the same when asked for proof of the lab's ties to the DoD. When asked where the requested aircraft was headed, Budic said operational security prevented him from speaking about it. Those asking questions were told to take it up with other agencies. Budic called someone "Colonel" to imply he was close to DoD officials but couldn't provide a name.The conversations -- many of them partly-transcribed in the warrant application -- are an amazing read. Budic dodged questions by stating he was on medication or replied with veiled threats more questioning would rain down DoD hell on the people standing between him and "his" aircraft.Apparently, Budic was quite the bullshitter. For a brief period of time, he talked his way into office space on a military base. When not hauling away whatever the GSA would part with, Budic was going after the GSA for "unfairly" denying him millions of dollars worth of equipment, including a plane, a boat, and a $10 million supercomputer.Among the things Budic was able to obtain were chemicals from a Defense Dept. chemical disposal facility, a seismograph from the Dept. of the Interior, and pharmacy equipment from Veterans Administration.The entire affidavit reads like a spec script for an unmade blockbuster. Sadly, it also shows what someone can get away with using little more than some letterhead, a plausible backstory, and a decent knowledge of government acquisition programs.

Village Roadshow, an Australian film distributor, has always been something of a strange anomaly. Like many others in the copyright industries, the organization has embraced copyright trolling as a business model, even touting the kind of trolling-automation that has since seen so much backlash over its inherent collateral damage toll. On the other hand, Village Roadshow was also one of the few film distributors I've seen actually come out and state that windowed releases are really, really stupid. On the other, other hand, the distributor subsequently went ahead with windowed releases anyway.Ambiguity appears to be somewhat in Village Roadshow's DNA. So, perhaps it isn't entirely surprising that upon announcing plans to take Australia back to the early 2000s by suing individuals for piracy, the company also made sure to inform the public that it will do so with almost perfect inequity.Let's start with Village Roadshow's plan, which is essentially to ape the RIAA from the days of peer to peer filesharing. It was a strategy, it should be noted, that was dropped because it wasn't particularly effective. But that isn't going to stop Village Roadshow from giving it another go.

The problem with border searches making a mockery of rights respected (for the most part) elsewhere in the nation isn't limited to the United States. Up in Canada, courts (and lawyers) are asking the same questions: how well are old, pre-smartphone laws holding up to today's reality? Everyone already knows what the answer is: not well. The question is: when will the Canadian government do anything about it?Canadians -- like Americans -- have the right to be free of unreasonable searches. Unfortunately, just like in America, this right seems to evaporate when one approaches the border. According to the Canadian customs law, border guards can search a lot of stuff travelers carry without a warrant.

Our winning comment on the insightful side comes in response to a rather confusing comment on Tim Geigner's post about Nintendo's classic consoles proving that people are willing to pay for what's easily available for free, which accused the post of setting up a "straw man" then went on to describe exactly what the post said. One anonymous commenter racked up lots of votes by pointing this out:

Earlier this week, the new documentary by Annie Goldson about Kim Dotcom, Kim Dotcom: Caught In The Web was released. It's available on basically any authorized platform (and, not surprisingly, quickly showed up on a number of unauthorized platforms as well). I should note that I sat for two interviews with the filmmakers, and am very briefly in the film. It's really worth watching. While it doesn't go as deep into the weeds of the specific legal issues at play as I, as a legal geek, might enjoy, that's understandable as a more mass market documentary. And I think it does a really great job of at least getting across the basic issues, of how people in Hollywood, the DOJ and New Zealand law enforcement, intelligence and government were so won over by the image of Kim Dotcom, that they didn't bother much with the legal details.One aspect of the legal case that is definitely discussed in the documentary is the fact that the New Zealand intelligence service, GCSB, illegally spied on Kim Dotcom on behalf of the US government. That's supposed to be forbidden, as the GCSB is only supposed to spy on foreigners, and not citizens or permanent residents. This came out fairly early on in the case against Dotcom, but there's been an ongoing legal battle (one of many...) into what it means concerning the case against him. GCSB had said that they didn't mean to break the law, so it shouldn't matter. And New Zealand moved to change the law to expand GCSB's surveillance powers over New Zealanders in the future.But on Friday, New Zealand's High Court officially unveiled a ruling from back in December, saying that the surveillance of two of Dotcom's colleagues was illegal. This goes beyond what was previously revealed a few years back. Of course, it appears that part of the ruling is based on GCSB refusing to provide any details, claiming they are "top secret" and that to respond to the charges would "jeopardise the national security of New Zealand." Yes, or perhaps just jeopardize GCSB.It's not entirely clear that this will have much of an impact on the case for Dotcom directly, though it once again highlights how the investigation and case against him involved an awful lot of cut corners by officials who totally bought into Hollywood's repeated story about how Dotcom was "Dr. Evil." Dotcom's lawyer, Ira Rothken, is arguing that this is yet another reason why the case should be dropped -- but so far the courts haven't really seemed to care much about all of the errors, law breaking and over reaction in building the case against Dotcom. However, as Rothken notes:

A few decades ago, Atari was one of the few indisputable titans in the the early gaming industry. With early titles like Pong and Breakout, Atari became a household name for gamers. At the present, however, Atari is little more than an intellectual property troll, scouring the world for anything it might frame as copyright or trademark infringement, often to laughable lengths. For the rest of this post, it is important to keep in your mind the fact that this is now Atari's chief industry: licensing and lawsuits.In 2016, Nestle unveiled a new commercial for its KitKat candy. That commercial, entitled "Breakout", can't currently be shown as it appears it's no longer available on YouTube or Vimeo. It's unclear who is responsible for the commercial no longer appearing on those sites, but it's certainly clear that they were taken down in relation to a lawsuit filed by Atari against Nestle for both trademark and copyright infringement around the video.

For a long time, we've been trying to debunk the "But people just want stuff for free" myth that purports to explain why the only proper strategy for infringement is heavy enforcement. Everyone should have instantly recognized that this was a dumb meme put forth by the content industries, so simple was the offered explanation for what is a vastly complex issue. Still, the meme persists, even in the face of contrary evidence.Evidence such as the fact that Nintendo has had trouble keeping its classic consoles in stock to meet consumer demand. Earlier this year, Nintendo hit the brakes on manufacturing the classic NES mini console after selling over two million of them. The result on the secondary market was immediate. Prices for the retro console skyrocketed, with people desperately searching for one. The interest from the public was high enough that, as Nintendo is set to release the SNES mini console as a follow up, the company is going out of its way to assure the public that it is making enough of them to meet demands.

You may recall that in 2014 we wrote about a strange occurrence having to do with Chase Bank refusing to provide its banking services to Teagan Presley, a rather well known adult film actress. When it became clear that Presley wasn't the only performer to whom this was happening, it initially looked as though banks were engaging in a form of slut-shaming of adult film actors. It turned out, however, that it was the federal government doing the slut-shaming, with the emergence of the Department of Justice's Operation Choke Point. This DOJ policy that was developed to combat financial fraud somehow bled over the stencil lines and became a sort of banking morality police, encouraging banks to cut off services to industries like adult film, fireworks retail stores, and sellers engaged in what the DOJ deemed to be "racist materials." It's worth highlighting that all of these industries and actions, whether you like them or not, are legal, yet the DOJ was essentially attempting to extra-judiciously scuttle them through secretive federal policy. That should have terrified everyone, but didn't, and so the program went on.Until recently. The justice department recently announced that Operation Choke Point will be ended.