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Get 25% off your copy of CIA: Collect It All withthe code HOLIDAY2019 until December 17th » There are only three days left in our very first sale on CIA: Collect It All, the real training game for CIA analysts that we reproduced and launched on Kickstarter last year. The sale runs through Tuesday, December 17th which is also the deadline to order with express shipping and still get it in time for Christmas. Use the promo code HOLIDAY2019 with your order to get 25% off » CIA: Collect It All includes 170 cards representing global crises, intelligence gathering techniques, and the unexpected circumstances and opposition that frustrate them. Plus, it contains rules for two separate games: the original CIA training game, and a storytelling variant that uses the cards for a more narrative roleplaying experience. If you want to check it out first, or just print your own copy, the print-and-play version is now free on itch.io with the complete set of cards and rules formatted for easy home printing. Get 25% off your copy of CIA: Collect It All withthe code HOLIDAY2019 until December 17th » Permalink | Comments | Email This Story

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Some good news for journalists in Nevada, via FourthAmendment.com. A decision made earlier this year by a state court has been reversed, resulting in an expansion of the protections offered by the state's journalist shield law. In March, Judge James Wilson -- overseeing a defamation lawsuit filed by Storey County Commissioner Lance Gilman against blogger Sam Toll -- decided the journalist shield law only protects journalists who work for printed newspapers. While it acknowledged the 1969 law also covers television journalists, it refused to extend these protections to Sam Toll and his blog, the Storey Teller. Toll was actually a member of the Nevada Press Association at the time he was sued, but Judge Wilson said that didn't matter because the alleged defamation occurred before he received these credentials. Wilson ordered Toll to divulge his sources. Toll challenged this decision, resulting in the state's Supreme Court letting the lower court know it can't define "journalism" so narrowly. The decision [PDF] says the court needs to buy a few more dictionaries. The definition of "print" the lower court used isn't the only one available. Because "newspaper" was not defined by NRS 49.275, the district court relied on the definition of newspaper in other statutes as well as in a dictionary. When examining statutory definitions, the district court found that in order to constitute a newspaper, the media source must be "printed." This was consistent with the dictionary definition of newspaper the district court used, which also stated a newspaper is "printed." Therefore, because Toll's blog was not printed in physical form, the court ruled it could not be a newspaper. However, if the district court had pursued the literal meaning of "print" further, it would have found that it could apply to digital media as well as physical form. In one dictionary, "print" is defined as "to make a copy of by impressing paper against an inked printing surface." Print, Webster's Third New Int'l Dictionary (2002). However, in another dictionary, "print" is defined as "to display on a surface (such as a computer screen) for viewing." Print, Merriam-Webster's Collegiate Dictionary (11th ed. 2020). Because "print" possesses two definitions that are equally applicable to this statute, the district court erred in limiting itself to only one. The court then cites the Supreme Court's Kyllo decision, which expanded Fourth Amendment protections to cover intrusive searches that don't actually involve the government entering the home. In the Kyllo case, thermal imaging was used to "search" a house for occupants without actually going inside the residence. As the court points out here, protections offered by law shift over time, even if the original wording remains unchanged. If the Fourth Amendment protects against searches that don't actually involve entering the home, it stands to reason the definition of journalism goes farther than covering printed newspapers only. While the drafters of NRS 49.275 knew what a newspaper was, they likely did not contemplate it taking digital form. But just because a newspaper can exist online, it does not mean it ceases to be a newspaper. To hold otherwise would be to create an absurd result in direct contradiction to the rules of statutory interpretation. In Kyllo, the court considered technological advancements and arrived at the conclusion that one can "search" in more than one way. See 533 U.S. at 31-33. We consider technological advancements as well and arrive at the conclusion that one can "print" in more than one way. The court doesn't go so far as to say a blog is a newspaper, but Sam Toll and his blog shouldn't be excluded from the state's shield law just because Toll's journalistic output isn't printed on paper. While we decline to resolve whether or not a blog falls under the definition of a newspaper, we conclude that a blog should not be disqualified from the news shield statute under NRS 49.275 merely on the basis that the blog is digital, rather than appearing in an ink-printed, physical form. The case goes back to the lower court with Commissioner Gilman's demand that Toll identify his sources blocked. Without this, it's unlikely Gilman will be able to continue pursuing his defamation lawsuit. This decision is a win for the state's independent journalists, who are now protected by a law that hasn't been revised since 1975. "Print" isn't just ink and dead trees and hasn't been for years. The state's top court recognizes this and now the rest of the state's courts are on the same digital page. Permalink | Comments | Email This Story

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As we've discussed in the past, the DMCA system is enforced in such a way as to make it wide open for abuse. One of the chief problems is that, while the DMCA does include potential punishments for filing bogus notices under 512(f), the courts have traditionally appeared to have forgotten that this part of the law even exists. The end result is that anyone looking to censor or extort others by either filing or threatening to file bogus DMCA notices is mostly free to do so without risk. The times when 512(f) actually gets a spotlight are so few and far between as to be news when it happens. This has been going on, and has been pointed out by various publications, for years. And yet it still goes on. Earlier, Mike wrote about Apple sending a questionable DMCA takedown to Twitter regarding a tweet, but there was a separate part of that story. Beyond the takedown to Twitter -- which everyone (including Apple) recognized as coming from Apple -- there were other takedowns sent to Reddit, leading the subreddit /r/jailbreak to go into lockdown. This followed the removal of several posts discussing how that Apple encryption key was taken down (as explained in the earlier post). Many leapt to the conclusion in both the media and wider internet that Apple was behind the shuttering of /r/jailbreak as well. Since Apple was behind the takedown on Twitter and the most obvious culprit in respect of the DMCA takedowns on Reddit, many fingers were pointed towards the Cupertino-based company. However, despite the best efforts of the moderators on /r/jailbreak, Reddit’s admins would not provide the necessary information to identify who filed the DMCA notices or on what grounds. With uncertainty apparently the order of the day, moderators of the discussion forum took the drastic decision to put their platform into lockdown. “Locking down the subreddit to prevent new threads is one of the ‘standard’ responses moderators take to show the admins that the mod team isn’t playing, and that they are serious and ready to remedy the issue,” a post from the mods reads. “Too many DMCA notices eventually end up with a warn and a ban (or just a ban) from the admins to whatever subreddit these notices are being sent to.” Part of the problem when it comes to this sort of thing with Reddit is that the site isn't at all transparent about the DMCA notices it receives. Due to that lack of transparency, the logical conclusion to which everyone leapt wasn't immediately countered by the documented reality. Because, as it turns out, the DMCA notice Reddit received which led to all of this was a fake. And a poorly constructed one at that. And, according to fellow developer ‘axi0mX’, the fake notice wasn’t particularly well constructed either. “We reviewed it and confirmed that it was someone impersonating Apple. It was not sent from their law firm, which is Kilpatrick Townsend. There are issues with grammar and spelling,” he revealed. “This notice was obviously not submitted in good faith, and it was not done by someone authorized to represent Apple. Not cool. They could be sued for damages or face criminal charges for perjury.” There are multiple issues here. The DMCA is by nature open to a non-zero sum of abuse. That non-zero sum gets higher and higher due to the courts and government not bothering to enforce the parts of the law that punish the abuse and fraud. Finally, the law creates a situation where sites like Reddit can decide against transparency when it comes to these DMCA notices, meaning that the fraud works all the better in creating a public backlash against a victim that, in this case, didn't deserve it. If we're going to have a DMCA at all, it sure would be nice if it could be properly enforced. Permalink | Comments | Email This Story

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We've long noted how community broadband networks are often an organic response to the expensive, slow, or just-plain unavailable service that's the direct product of a broken telecom market and regulatory capture. While you'll occasionally see some deployment duds if the business models aren't well crafted, studies have shown such local networks (there are 750 and counting now in the States) offer cheaper, faster service than many incumbents. Chattanooga's EPB, for example, was rated the best ISP in America last year by Consumer Reports. This direct grass roots threat to incumbent revenues is a major reason why ISP lobbyists have passed protectionist laws in around 20 states trying to block your town's ability to even consider the option. It's why industry cozy FCC officials have falsely tried to suggest community broadband is an ominous assault on free speech. And it's why you'll find an endless parade of telecom-linked think tankers, consultants, and lobbyists routinely trying to portray this organic response to market failure as "vile socialism" or an inevitable boondoggle. Enter Bernie Sanders, whose new broadband plan was released last week and appears to have been cobbled together from the collected nightmares of AT&T, Verizon, and Comcast executives. The plan would not only restore the FCC's net neutrality authority and the agency's authority over ISPs in general, but it would restore the FCC's broadband privacy rules scuttled in 2017 by telecom lobbyists. It would also ban arbitrary and unnecessary broadband usage caps and overage fees, and ban the sneaky fees ISPs use to covertly jack up the advertised price post sale. But the plan takes some extra time to highlight how a Sanders administration would embrace community broadband, including the elimination of protectionist state laws, and the doling out of $150 billion to be used largely toward building alternatives to the private sector telecom status quo: "Municipalities across the country running their own internet services have proved they can deliver high-quality service at a fraction of the price of established monopolies. Cities can run their own networks just like a water or electric utility or build out an open access network to allow multiple providers to compete on price and service, rather than one or two conglomerates gouging customers and setting their own prices. Bernie believes it’s time to stop relying on profit-focused corporations to get to universal broadband. Bernie will provide the necessary funding for states, cities, and co-ops to build out their own broadband networks, and ensure all households are connected by the end of his first term." Needless to say, the telecom sector isn't going to much like any of this. Especially given the fact that the sector has been immensely successful in convincing government to void all meaningful oversight of these natural monopolies in recent years. Yeah, most of this will never come to pass without a significant shake up in Congress. And yeah, telecom lobbyists will do everything in their power to scuttle Sanders before he ever reaches the Presidency. Still, it's pretty clear the Sanders team has been paying close attention to the broken sector and is at least offering up a proposal, whereas most other Democratic candidates (outside of perhaps Warren and Klobuchar) have offered little more than vagaries. The proposal isn't without its problems. Several economists versed in telecom and media tell me that the proposals to retroactively break up giants like Comcast NBC Universal and AT&T Time Warner are little more than pipe dreams that would be logistical nightmares in actual practice. And the Sanders camp also oddly opposes so-called "one touch make ready" rules (which allow any qualified third party to move pole equipment instead of just incumbent ISPs) despite widespread support of such proposals (unions tell me "one touch" poses a safety and security risk, but those claims are hotly contested). Still, the plan at least acknowledges the US telecom sector, which ranks in the middle in nearly every broadband metric that matters, is a broken mess thanks to consolidation, regulatory capture, limited competition, and corruption. That's something countless experts and lawmakers refuse to acknowledge. Bernie's plan is certainly no more ludicrous than the US' current and most favored approach: gutting regulatory oversight, throwing billions of unaccountable dollars at predatory monopolies, then standing around with a dumb look on our collective faces wondering why Comcast is such an immeasurable shitshow. Permalink | Comments | Email This Story

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Copyright continues to serve its purpose as a tool for censorship, it seems. This week there was some hubbub over Apple's highly questionable decision to send a DMCA takedown notice over a tweet by a security researcher who goes by "Siguza," and who appeared to publish an iPhone encryption key on Twitter: iPhone11,8 17C5053a sepi 9f974f1788e615700fec73006cc2e6b533b0c6c2b8cf653bdbd347bc1897bdd66b11815f036e94c951250c4dda916c00 — Siguza (@s1guza) December 8, 2019 Twitter took it down upon receipt of the takedown notice, but later put it back after Apple rescinded the takedown -- either realizing that the takedown was bogus or futile (or, I guess, both). You can understand (sorta) why Apple would want to protect the key, but copyright seems like exactly the wrong tool for the job. Of course, that's often the case, but copyright is such an easy tool to abuse to try to silence speech that it is often the preferred tool of would-be censors. This is just one example. But it does raise questions. Is an encryption key even copyright-eligible? That seems highly unlikely. Copyright only is supposed to apply to the creative elements of a work, and it would be difficult to argue that an encryption key meets the "creative" level necessary. US courts have already decided that phone numbers are not subject to copyright (even made up numbers), so it seems unlikely that an encryption key would pass muster for getting a copyright. Potentially Apple could have been making a DMCA 1201 "anti-circumvention" argument as well -- but even that seems silly, and only highlights the problems of the anti-circumvention provisions of Section 1201 of the DMCA. When a single tweet with a single code is seen as "circumvention" then there's a big problem -- and that problem is the law. It's good that Apple backed down on this, though it still highlights the problems of the DMCA takedown process, and how it can be used unfairly for censorship -- even if that "censorship" completely backfired this time. Permalink | Comments | Email This Story

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More nonsense is being perpetrated in Tennessee, the recent home to an inordinate amount of stupid defamation lawsuits. The timing on this one is a bit off. Tennessee just adopted a new anti-SLAPP law -- one that actually has some teeth. After receiving a stinging -- but not apparently defamatory -- review of his services, Dr. Kaveer Nandigam of Nandigam Neurology decided to sue his patient for $25,000. Here's the review (which is still live on Yelp) that prompted the lawsuit: This "Dr's" behavior today was totally unprofessional and unethical to put it mildly. I will be reporting him to the State of TN Medical Review Board and be filing a formal complaint. How this guy is in business is beyond me. Since when did they start allowing Doctors, to throw a complete temper tantrum in front of Patients and slam things when they get upset? He does not belong in the medical field at all. Here's the background on the alleged temper tantrum, as told to Matthew Torres of Nashville's News Channel 5. After being referred to Nandigam Neurology, [Kelly] Beavers brought her 67-year-old father for dizziness and memory loss, which may have been early signs of dementia. There have been prior interactions with the staff but never with the doctor until the last visit. Beavers says the interaction seemed fine at first, but that the doctor then threw a temper tantrum and slammed his clipboard when he realized she was recording the appointment on her cell phone, which is something she has done with other doctor visits. "Sometimes we all have things we forget, so that's why I record every doctor's visit. I want to make sure that I'm doing everything right," she explained. "He literally snapped and demanded my phone." The issue isn't the recording. Tennessee is a one-party consent state, so Beavers didn't need to ask permission before recording her father's visit to Nandigam Neurology. The doctor's demand she delete the recording is what's out of line here. Beavers did delete the recording, but she wasn't happy, and she turned to Yelp to express her displeasure. Nandigam's lawsuit (which multiple sites have covered but apparently no one can be bothered to post the complaint) claims Beavers' review contains "false, disparaging, and misleading statements." This is boilerplate and isn't going to get the plaintiff very far -- not when the review contains nothing more than Beavers' opinion on the doctor's behavior. She's not part of the state's medical board so she can't actually make a factual declaration about unethical behavior. She can only present her subjective take on medical/professional ethics and she obviously felt being yelled at and told to delete a recording crossed that line. The more interesting claim is this one: The lawsuit also suggested that the second defendant "was specifically recruited" by Beavers to post false and misleading statements. This drags the son of one of Beavers' friends into the lawsuit. Allegedly, her friend's son posted a negative review to Google after hearing about her experience. Dr. Nandigam frames this as a "conspiracy." It's a hot take and it probably won't play well in court. The downside is Beavers will have to defend herself against this bogus lawsuit. She's started a GoFundMe for legal fees. Hopefully, the state's new anti-SLAPP law will allow her to escape this suit before she has to spend too much money. And, if the court decides in her favor, she should be able to recover her legal fees from a doctor who has done more to damage his own reputation than Beavers' single negative review ever could have done. Permalink | Comments | Email This Story

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Various health fads come and go. One particular one that I guess has been around for a bit is the idea of drinking "green smoothies." This was made popular by Robyn Openshaw, who is called "The Green Smoothie Girl" and has written a bunch of books, all around her views on approaches to losing weight and health, including the aforementioned green smoothies, and various "detox" plans. There's also something about "vibrations," but that's about as deep into the weeds as I was going to get on her views on staying healthy. I have no opinion on whether or not any of that stuff works or is good for you (do your own research!) but it does appear that the Green Smoothie Girl, Robyn Openshaw, is not at all happy about negative reviews. People who merely posted on Facebook saying that Openshaw's claims were "unproven" among other things, started receiving threatening messages demanding that these mildly negative reviews be taken down or they would face lawsuits: Is it actually slander/bullying to post a negative review of a company on FB? I got this very long message on FB Messenger from a person who isn't even a lawyer...I have never cyber-bullied anyone, so I am inclined to take no action whatsoever. Any advice gladly taken pic.twitter.com/83fPyLvRaO — Sarah Jane (@nurse_nomad) December 6, 2019 Someone at least claiming to work for Robyn was contacting people with ridiculously baseless threats. The threats are so ridiculous as to be laughable: Sarah Jane, my employer is Robyn Openshaw, Influence Brands, and GreenSmoothieGirl. You have until midnight tonight, to remove your negative reviews on her various companies. We have screenshotted your slander and cyberbullying and will engage our attorneys and PI's to send you a FORMAL C&D, should you not wish to comply, as well as file a lawsuit against you which will include damages to her.... [....] ... as we work together to gather information and file complaints, as well as court costs, in our state (not yours.) As soon as your name is in the lawsuit for damages, slander, and cyberbullying with charges in all applicable case law, we will hold you accountable for those charges as lon gas it takes. You can probably infer that this will be very expensive. Most of that is word salad, with a few nonsense legal terms tossed in for shits and giggles. But, it's a nice touch to flat out admit in the threat to file a SLAPP suit that you're doing it because it will "be very expensive." Good to admit that that's your intention upfront, right? I would imagine this will end up in the media as well. You don't say... Should you choose to delete all your false reviews, we will not subpoena Facebook for all your information and pursue legal action against you. We will just watch your actions in case you do any more, and at that point we will take ALL of the evidence to the authorities. The authorities? I love legal threats that don't know the difference between civil complaints and criminal charges, but, hey. It all sounds vaguely about the law. But wait, there's more: pic.twitter.com/Z7Qqw81jEV — Sarah Jane (@nurse_nomad) December 6, 2019 There are some true classics in here. I highly recomment you take quick action to remove the negative reviews, as they legally qualify under many laws/statutes as slander and bullying, and the law holds you accountable for the financial and other losses businesses incur due to your actions--even the time we employees spend having to document your actions and pursue you, will be collected in a court judgment against you. That review must have been pretty bad, right? Nope: All I said was they make unproven claims. No rude language. — Sarah Jane (@nurse_nomad) December 6, 2019 Since then First Amendment lawyer Ari Cohn has been cataloging more and more insanity around these threats. We've heard of some unique interpretations of Section 230 in the past, but this might be the craziest: BUT WAIT, THERE'S MORE: She isn't liable for what she says on her pages, but YOU might be! pic.twitter.com/mMFg9rNaoV — Ari Cohn (@AriCohn) December 6, 2019 That includes an image first of someone asking for info on a commenter be sent to Openshaw so "he can be served legally and peacefully" and then shows Openshaw stating the following, which appears to likely be her mangling how Section 230 works: Lannette Syck also attorney confirms I am not liable for what I say here. This is my page. They are the ones out of bounds. They come on my page and the pages of my business. Um... what? And, of course, it quickly came out that they were sending these kinds of messages to others who wrote negative reviews as well. And, as we all know by now, you're not doing vexatious legal threats correctly if you don't eventually get around to doing the RICO. And I think we can say mission accomplished on that one: There’s even more—she’s claiming RICO! pic.twitter.com/YDE80YF2bz — Eric (@NamfohCire) December 7, 2019 That's a message, direct from Openshaw's account (rather than an "employee") saying: She wasnt a commenter. She committed felony tortious interference and RICO. let her know it's slander and tortious interference when I can prove she's not a customer or follower and she was told to go attack my page by pharma mafia troll. Clueless trolls don't know c&d is a warning. Should they want to remove the fraud review before they get served. They can disregard, their choice, and get served. All the fake reviews posted within 48 hours of supertroll BKM telling others to attack my page, plus tagging her troll friends right here on my page to go post fake reviews. We have all the screen shots. Felony convictions are a matter of public record and can keep you from getting a job or a loan. Felony convictions? For posting a mildly negative review? That's not how any of this works. Also, she seems to think that violating Facebook's terms of service is the same as violating the law. And cyber consultants something something something. Robyn thinks she can sue people for violating Facebook's ToS and she has CYBER CONSULTANTS. #greensmoothiegirlhttps://t.co/W5AbUdlbo6 — Ari Cohn (@AriCohn) December 7, 2019 That's another message from Robyn's own account: [Redacted], would you like to take your troll posts down--on your page, and the comment on mine--or would you prefer my cyber security specialist serve you at your work with my attorneys' C&D and lawsuit for defamation and violating Facebook's bullying policies, and you have violated both--which are here: * descriptions of photos that degrade someone's appearance or character. * targeting someone with threats Your choice. Let me know by midnight tonight, because I have some legal actions to initiate tomorrow. If there is a cyber bullying lawsuit, we will seek all my legal and cyber consultant fees. Sounds credible! And apparently, RICO isn't enough, because eventually, you need to take it up a notch. To terrorism. HATE SPEECH AND TERRORISM! pic.twitter.com/o7FojoQYNY — Ari Cohn (@AriCohn) December 7, 2019 That appeared to be a bit of an "airing of grievances" by Robyn with those who left negative comments, and includes this whopper: My attorney will subpoena Facebook Monday so I can sue her for damages and engage Facebook to find her actual identity and any other fake profiles where she spreads hate speech and terrorism. And there's more. This time, a message from "Drew Millz." Well, the c&d is obviously informal, as it said, from a non attorney (who is talking to attorneys as she vets them for who is most qualified to sue the rolls doing damage to her business, harassing, and other cyber crimes). And when the suits against those doing damage to her business are filed, they will of course all be based on actual law. Well, phew. Actual law. Like the 1st Amendment? Might want to look that one up before suing over speech. All of you can discuss at will but if you do damage to Ms Openshaw and her publishers' properties or slander or harass you will face legal consequences. Some will be served at home and some at work so be mindful if you are the type of person to harm strangers' IP and web properties. Some of you have done it to many people and we are collecting that evidence to make this a larger order and TRO than just Ms Openshaw. But no one sending the INFORMAL c&d claimed to be an attorney. The informal c&d stated these options are being considered. The legal team about to represent Ms Openshaw in these actions feel there is RICO justification for two of the supertrolls. RICO justification? Informal C&Ds? This is just so much fun, I might have to go drink an orange smoothie to celebrate. Anyway, the informal cease and desist letters then turned into "draft" C&D letters, because that makes no sense at all. Also, they promise to drag the people they're threatening to Utah to defend this, once again effectively admitting that this is vexatious. There's also a separate Twitter account that first claimed Openshaw was already sending subpoenas and also looking for a lawyer (i.e., sending subpoenas before having a lawyer?!?): Robyn Openshaw, public figure THE #1 health site , is seeking a top attorney that specializes in cyber bullying. She has been very public that she is going to sue a number of the trolls & is already subpoenaing their info and says it will ALL be in public court of law record! thx And when more knowledgeable people pointed out how silly this claimed, the responses got worse: She didn’t have to get any of the information subpoenaed. Asking the universe will provide. This is going to be an epic case that will set a precedence and she said these trolls are going to pay. With more than money. Asking the universe will provide. If her knowledge of health and wellness is at the same level as her knowledge of the law, well, I'd maybe stay away from green smoothies. The threats on Facebook have continued -- with the latest coming from a brand new profile under the name "Jeff Johnson" claiming that Openshaw doesn't want to harm anyone's right to free speech -- but somehow calling out her bogus threats is an attack on her free speech. Because, of course: That one also includes some fun insults about "under employed lawyers" and warnings about more lawsuits. I get that people not fawning over you may feel bad. And that negative reviews may hurt. But hitting back with bogus legal threats, then doubling down with even more threats that are in no way reflective of the actual law, is no way to go through life. Permalink | Comments | Email This Story

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Unless you're in fairly stark denial, it's clear the Trump Federal Communications Commision has been a rubber stamp for the every fleeting whim of the telecom sector, be it the agency's decision to effectively neuter itself at telecom lobbyist behest, or the attack on net neutrality rules with widespread bipartisan support. But such revolving door regulation has more subtle casualties, as well. The Wall Street Journal this week for example offered up an interesting deep dive into how ISPs successfully pressure the FCC to ignore slower broadband speed test data when analyzing whether ISPs are delivering the speeds they promise: "AT&T Inc. was dismayed at its report card from a government test measuring internet speeds. So the telecom giant sought to change its grade. The company pushed the Federal Communications Commission to omit unflattering data on its DSL internet service from the report, which assesses whether providers are delivering the speeds they advertise. AT&T also didn’t provide information the FCC needed to validate speeds on those customers, the test officials confirmed. In the end, the DSL data was left out of the report released late last year, to the chagrin of some agency officials. AT&T’s remaining speed tiers notched high marks. The Journal is quick to highlight how this kind of gamesmanship results in FCC studies and data that doesn't accurately reflect reality, something that obviously excites incumbent broadband executives all too eager to obscure incomplete deployments and a lack of competition in the sector: "Companies wield tremendous influence over the study and often employ tactics to boost their scores, according to interviews with more than two dozen industry executives, engineers and government officials. As a result, the FCC’s report likely gives consumers an unreliable measure of internet providers’ performances by overstating speeds." Hoping to use real world data to inform policy decisions (crazy, I know), just about a decade ago the previous FCC struck a deal with UK measuring firm SamKnows to measure real world broadband speeds under the creatively named Measuring Broadband America program. The firm in turn began using volunteers and custom-firmware embedded routers to obtain an objective, third party analysis of just what kind of speeds users see in the wild. Not too surprisingly the Pai FCC has been trying to discontinue the program, and AT&T says it will no longer cooperate with the FCC on the effort anyway (apparently with no penalty from the FCC). Meanwhile, AT&T tries to claim to the Journal that the reason it wanted its slower DSL speed ratings removed from the study is because it no longer markets the service: "AT&T said that in its case, the company asked the FCC to remove DSL data from the report because it no longer markets that older technology, which relies on copper phone lines, used by a small percentage of its customer base. The company said the commission’s own policies should have excluded the “obsolete” internet plans. AT&T also said that it did validate the DSL accounts for the FCC." But we've noted for years that AT&T has been a cheapskate when it comes to finishing fiber deployments the company has received billions in taxpayer dollars for, leaving vast swaths of the country with the choice of either a cable monopoly or sluggish, capped DSL. AT&T would prefer it if government reports just floated the fuck over that fact, and the Pai FCC seems more than happy to oblige, with zero to no penalty for big ISPs that mislead the agency or refuse to take part in projects that give consumers an accurate view of the market. This of course isn't the first time this problem has been brought up. FCC reports are routinely assailed as being rose-colored-glasses affairs designed not to inform, but to avoid upsetting deep pocketed telecom campaign contributors. The FCC's $350 million broadband map, which all but hallucinates competitors and speeds, and omits pricing data, is a perfect example of the end result of this dysfunction. The end goal is government reports that again hide the country's mediocre and expensive broadband shortcomings, lest somebody get the crazy idea to try and do something about it. The Journal's report likely won't get much attention, since exclusively hating on big tech while forgetting big telecom is just as bad is all the rage right now. But uncharacteristically for a major US paper, the Journal does a nice job highlighting how a captured FCC is now a full throated apologist for the broken US broadband industry and its half-built, expensive, taxpayer-funded networks. Permalink | Comments | Email This Story

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To add to all the bad news that is Ring camera's lifecycle to this point comes the report that a group of malcontents has been exploiting default/weak credentials to gain access to cameras. Joseph Cox has the this-would-be-funny-if-it-weren't-so-scary details at Motherboard. Hackers have created dedicated software for breaking into Ring security cameras, according to posts on hacking forums reviewed by Motherboard. The camera company is owned by Amazon, which has hundreds of partnerships with police departments around the country. On Wednesday, local Tennessee media reported that a hacker broke into a Ring camera installed in the bedroom of three young girls in DeSoto County, Mississippi, and spoke through the device's speakers with one of the children. The family said they had the camera for four days, during which time the hacker could have been watching the kids go about their day. There's not much actual hacking going on. What appears to be happening is purchasers aren't choosing unique passwords when they set up their cameras. They also aren't using the two-factor authentication Ring recommends. There are enough cameras out there (and more being installed every day), there's an entire forum set up just for the hijacking of Ring cameras/doorbells. Forum members are selling exploit tools to each other which allow these jackasses to brute force Ring devices using credentials (usernames/email addresses and passwords) found elsewhere on the web. The popular exploitables have even spawned a podcast featuring unsuspecting device owners being trolled by jerks who have gained access to Ring and Nest cameras. This is what's in store for device owners who haven't properly secured their new purchases. A blaring siren suddenly rips through the Ring camera, startling the Florida family inside their own home. "It's your boy Chance on Nulled," a voice says from the Ring camera, which a hacker has taken over. "How you doing? How you doing?" "Welcome to the NulledCast," the voice says. The NulledCast is a podcast livestreamed to Discord. It's a show in which hackers take over people's Ring and Nest smarthome cameras and use their speakers to talk to and harass their unsuspecting owners. In the example above, Chance blared noises and shouted racist comments at the Florida family. Good times. Nulled forum members are starting to scatter, now that Joseph Cox has shined a light on their dirty little games. The Nulled admin has nailed an unbelievable statement to the top of the forum, saying that Nulled does not tolerate the "harassments of individuals over Ring cameras or any similar." This posting followed some "unscheduled maintenance," which occurred shortly after Motherboard's first article on Ring exploitation went live. Panic has ensued. Cox reports the forum is in disarray, with members quitting or changing their usernames. Some appeared to be worried law enforcement is all over this. Others think the only ones going to jail are the members who participated in the podcasted Ring hijacking. But it's not over yet. A few members appear to be willing to roll the dice on possible legal charges. It doesn't seem the livestreaming of Ring hacking is going to end just yet, however. "Podcast dead?" one user on the Nulled Discord asked Wednesday night. Another user replied, "Nope. Tune in Friday. Like and subscribe." Perhaps the focus of the podcast will change. Considering the channel's been dedicated to finding exploitable devices and exploiting them to create content, any pivot will likely be short lived. In the meantime, Ring is doing about the only responsible thing it's ever done. "As a precaution, we highly and openly encourage all Ring users to enable two-factor authentication on their Ring account, add Shared Users (instead of sharing login credentials), use strong passwords, and regularly change their passwords," [Ring] added. Perhaps more education of consumers is in order. Security recommendations are great, but purchasers appear to feel installing the cameras is the end of the job. It's one thing to get your sidewalk-facing doorbell camera hacked. It's quite another to have your interior cameras turned against you. The Internet of Things continues to be awful. Ring's general awfulness kind of obscures the fact that this particular debacle isn't really Ring's fault. But it could be doing more. It could prevent deployment until two-factor authentication is engaged. And it could ease up a bit on its promises of home security when the default setup process allows outsiders to virtually enter the homes of Ring owners. Permalink | Comments | Email This Story

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posted 3 days ago on techdirt
You may have noticed something of a steady stream of posts from us on the topic of a "Taco Tuesday" trademark held by the chain Taco John's. Taco John's has used this descriptive trademark to bully all kinds of other restaurants into not advertising their own taco Tuesday offerings, while also leaving alone the vast majority of small purveyors of tacos on Tuesdays. The ubiquity of Taco Tuesdays is mostly what has everyone confused as to why Taco John's is acting like Taco Jerks: the term is descriptive and, even if it weren't, fully generic at this point. It was enough to, and I can't believe I'm saying this, get LeBron James involved. You see, just like dragons, LeBron loves tacos. And he likes promoting his own consumption of tacos on Tuesdays and he very much thinks that everyone should be able to use the phrase as they please. To that end, LeBron took to the Trademark office pretending to want to trademark "Taco Tuesday" for himself when he was actually hoping to get denied due to the generic and descriptive nature of the mark... which is exactly what happened. We said then that it was now only a matter of time before someone decided to go on the offensive to take Taco Tuesday back by inviting Taco John's to issue a threat so that this hero group could point to the Trademark Office's denial of LeBron's trademark, with the ultimate goal being invalidating the Taco John's trademark. Well, that has now happened. The Orange County Restaurant Association has gone all in, going so far as to by the tacotuesday.com domain. Now joining the effort is California’s Orange County Restaurant Association, which recently bought the domain TacoTuesday.com. Why OCRA? Well, its members know a thing or two about a good taco—and the domain presents a great marketing opportunity for them, founder and president Pamela Waitt told the Orange County Business Journal. “That’s part of our agenda here, is to really illuminate the Orange County restaurant industry, which can be challenging when you’re sandwiched between Los Angeles and San Diego,” Waitt said. But she notes that there’s also a bigger goal at play: OCRA hopes to open the phrase up to everyone else, creating a resource for taco culture in general. In a news release, Waitt characterized the group’s role as “peacemaker.” OCRA can characterize itself however they like, but this is pretty clearly a shot across the bow at Taco John's, practically begging the chain to issue a threat or file suit. If that occurs, OCRA would likely seek declaratory judgement that its use does not infringe due to the generic nature of the trademark, which would get the ball rolling on invalidating the trademark. The association plans to relaunch the website next spring with 500 listings of taco shops in five states, providing the listings for free to restaurants. OCRA says it will make the domain “an umbrella brand for taco events, social media activations, media tours, guest chef interviews, and an opportunity to foster strategic partnerships, corporate citizenship, philanthropic giving, and beyond.” None of which really requires having a domain name of tacotuesday.com, except if the organization wants to promote itself through the news, poke Taco John's in the eye, or both. So maybe, just maybe, our long national taco nightmare will come to an end soon. Permalink | Comments | Email This Story

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A good ruling [PDF] has been issued by a Florida Appeals Court -- one that not only affirms its earlier warrant requirement for Stingray use, but also reminds law enforcement that the good faith exception isn't as expansive as they think it is. (via FourthAmendment.com) In 2018, the same court said the use of cell site simulators required warrants. Unlike collecting cell site location info from third parties (which was fine until the Supreme Court's Carpenter decision), Stingray devices turn the government into the second party, coercing location info from phone users by forcing them to connect to law enforcement's fake cell towers. That decision doesn't bring precedential force to this case, which deals with events that happened six years before the state appeals court's 2018 ruling. In 2012, the State charged the defendant with first-degree murder after his mother was found dead in their shared apartment. Detectives tracked the defendant using cell-site location information and a cell-site simulator. The defendant was found sitting in the victim’s parked car along with several pieces of evidence. The defendant moved to suppress the evidence, arguing it was obtained in violation of his Fourth Amendment rights. The trial court granted the motion to suppress, and the State appeals. We affirm the suppression order. Six years later, a whole lot of evidence in a murder trial is going to be eliminated. The government's attempt to have the good faith exception applied dead ends here as well. The state argued detectives deployed the Stingray device without a warrant in good faith, since there was no binding precedent forbidding them from doing so. But the court points out it isn't willing to grant "good faith" to officers doing stuff just because no one has told them they can't yet. The officers might have operated in good faith if their warrant request wasn't crafted in bad faith. The court notes precedent at that time (prior to the Supreme Court's Carpenter decision) allowed law enforcement to obtain cell site location info without a warrant. Here, the State lacks the benefit of longstanding precedent authorizing the warrantless use of CSLI. However, Tracey I and the statutes authorizing law enforcements to access CSLI with a court order, taken together, provided sufficient precedent on which the detectives reasonably relied. But investigators didn't actually obtain CSLI from a third party. They deployed a cell site simulator instead. The cell-site simulator is another matter. Neither the application nor the court order mentioned a cell-site simulator. The state might be technically correct, but technically correct isn't good enough in Florida. In 2012, no binding case law addressed whether police must obtain a warrant to use a cell-site simulator. The good faith exception applies when binding precedent affirmatively authorizes a particular police practice. Authorization is the key. And this court is one of the few that has applied the good faith standard this way. The government should not be able to operate freely in legal vacuums. That's what many choose to do, and far too many courts have decided good faith applies until something is expressly forbidden by a precedential decision. Not here. The Fourth Amendment violation here is precisely the kind of violation the exclusionary rule seeks to deter. The CSLI data led detectives to a broad search area where the defendant was located. Unable to find the defendant’s exact location, the detectives went outside the scope of the court order and used a cell-site simulator to locate him. This should be the standard for the good faith exception. The government cannot rely on the absence of binding decisional law in this area to conduct a warrantless search. The government should act cautiously in the absence of binding precedent. Instead, it exploits every gray area not sufficiently explored by courts. This is not how public servants should act when faced with a lack of specific guidance. Making up the rules as you go along is not "good faith." Neither is hiding the use of a cell site simulator behind a court order for cell site location info. The more the government acts this way, the less it can be trusted. Moving it back in line with the principles it's supposed to be upholding will take more decisions like this -- ones that call out bad faith for what it is, rather than pretend every under-explored area of the Fourth Amendment is covered by the good faith exception. Permalink | Comments | Email This Story

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There are very few things in life that former NSA and CIA director Michael Hayden and I agree on. For years, he was a leading government champion for trashing the 4th Amendment and conducting widespread surveillance on Americans. He supported the CIA's torture program and (ridiculously) complained that having the US government publicly reckon with that torture program would help terrorists. But, there is one thing that he and I agree on: putting backdoors into encryption is a horrible, dreadful, terrible idea. He surprised many people by first saying this five years ago, and he's repeated it a bunch since then -- including in a recent Bloomberg piece, entitled: Encryption Backdoors Won't Stop Crime But Will Hurt U.S. Tech. In it, he makes two great points. First, backdooring encryption will make Americans much less safe: We must also consider how foreign governments could master and exploit built-in encryption vulnerabilities. What would Chinese, Russian and Saudi authorities do with the encrypted-data access that U.S. authorities would compel technology companies to create? How might this affect activists and journalists in those countries? Would U.S. technology companies suffer the fate of some of their Australian counterparts, which saw foreign customers abandon them after Australia passed its own encryption-busting law? Separately, he points out that backdooring encryption won't even help law enforcement do what it thinks it wants to do with backdoors: Proposals that law-enforcement agencies be given backdoor access to encrypted data are unlikely to achieve their goals, because even if Congress compels tech firms to comply, it will have no impact on encryption technologies offered by foreign companies or the open-source community. Users will simply migrate to privacy offerings from providers who are not following U.S. mandates. Indeed, this is the pattern we have seen in Hong Kong over the last six months, where pro-democracy protesters have moved from domestic services to encrypted messaging platforms such as Telegram and Bridgefy, beyond the reach of Chinese authorities. Unless Washington is willing to embrace authoritarian tactics, it is difficult to see how extraordinary-access policies will prevent motivated criminals (and security-minded citizens) from simply adopting uncompromised services from abroad. None of this is new, but it's at least good to see the former head of various intelligence agencies highlighting these points. At this point, we've seen intelligence agencies highlight the value of encryption, Homeland Security highlight the importance of encryption, the Defense Department highlight the importance of encryption. The only ones still pushing for breaking encryption are a few law enforcement groups and their fans in Congress. Permalink | Comments | Email This Story

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The Inspector General's report [PDF] on the FBI's investigation into Russia's connection to the Trump election campaign has been released. In the 480-page report, there's enough to satisfy both sides of the argument. Those who believe the investigation was never politically-driven will have their hunches confirmed. Those that believe there's a concerted Deep State effort targeting Trump will find just enough in it to affirm those beliefs as well. The Inspector General behind the report, Michael Horowitz, has never been afraid of calling bullshit on the numerous agencies he oversees. These agencies, on the other hand, do everything they can to thwart his investigations, so if anything crucial seems to be missing from this report, you can probably blame the FBI. The report clears the FBI of any wrongdoing, at least as far as the "politically-driven" allegations. The IG concluded the FBI did things badly, but did not do them for anti-Trump reasons. That being said, the more disturbing aspects of the report deal with the FISA court and the FBI's casual abuse of its surveillance authorities. Not much is known about the FBI's domestic surveillance efforts -- at least not those authorized by the Foreign Intelligence Surveillance Act. While the FBI routinely performs "backdoor" searches of domestic communications harvested by the NSA's foreign-facing surveillance efforts, we have yet to see an actual FISA affidavit from the FBI. The affidavits reviewed by IG Horowitz involved the surveillance of Carter Page, hat-wearer and foreign policy advisor for the Trump campaign. The super-secret process has rarely been this closely examined before. What it shows is the FBI playing fast and loose with its surveillance powers. Here's Charlie Savage's take for the New York Times: [T]he inspector general found major errors, material omissions and unsupported statements about Mr. Page in the materials that went to the court. F.B.I. agents cherry-picked the evidence, telling the Justice Department information that made Mr. Page look suspicious and omitting material that cut the other way, and the department passed that misleading portrait onto the court. Here's what the report says: Our review found that FBI personnel fell far short of the requirement in FBI policy that they ensure that all factual statements in a FISA application are "scrupulously accurate." We identified multiple instances in which factual assertions relied upon in the first FISA application were inaccurate, incomplete, or unsupported by appropriate documentation, based upon information the FBI had in its possession at the time the application was filed. The FBI was so interested in keeping Carter Page under surveillance that it manipulated the facts it had to better fit the actions it wanted to take. In the FBI's initial wiretap application, the agency cherry-picked info from informants to find anything that might possibly suggest Carter Page was the connective tissue between Donald Trump and the twice-convicted Paul Manafort. When it came time for the wiretap renewal, the FBI chose to withhold new information that contradicted some of the original probable cause it had supplied to the FISA court on its first application. This is just the FBI adding onto its not-so-proud tradition of misleading the FISA court. As far back as 2002, the FISA court was already complaining about the FBI's "inaccurate affidavits." Not much seems to have changed. If this report is any indication of the FBI's general approach to submitting affidavits, agents are massaging weak correlations into something approaching probable cause and continuing this abusive editing process for every renewal. The procedures introduced following the FISA court's 2002 criticism don't appear to be having much of an effect. The FBI will get yet another chance to start acting like a trustworthy government agency. More pressure is being placed on it from its oversight. The Inspector General's office says another audit is underway -- this time to determine just how often the FBI fudges facts on FISA applications. Given the extensive compliance failures we identified in this review, we believe that additional OIG oversight work is required to assess the FBI's compliance with Department and FBI FISA-related policies that seek to protect the civil liberties of U.S. persons. Accordingly, we have today initiated an OIG audit that will further examine the FBI's compliance with the Woods Procedures in FISA applications that target U.S. persons in both counterintelligence and counterterrorism investigations. These findings will be of considerable public interest, but given how much secrecy surrounds FISA court proceedings, it's unclear when, or if, we'll ever see this report. So far, nothing seems to be making the FBI handle its considerable power more responsibly. The FISA court isn't adversarial. Few people criminally charged as the result of FISA-ordained surveillance have the opportunity to challenge this evidence in court. The worst thing that can happen to the FBI is periodic benchslaps by FISA judges. And the opinions and orders containing these benchslaps generally aren't cleared for public consumption until years after the fact. That's not much of a deterrent. There's a Deep State problem out there, but it's not politically-motivated. It's not the FBI vs. politicians it doesn't like. It's the FBI vs. Americans it wants to place under surveillance via a court supposedly interested in the gathering of foreign intelligence. Ordinary domestic surveillance produces paper trails that must be turned over in trial courts. FISA surveillance does not, which is why the FBI loves having this option. Permalink | Comments | Email This Story

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Perhaps one of the more annoying points that people like to make when you point out that certain services are "free" is for them to point out, pedantically, "but you pay with your data" or some other such point. This is annoying because it's (1) obvious and (2) not the point. When people say something is "free" in this context, they don't mean "free of all consequences." They mean "it doesn't cost money." However, it appears that Hungary's Competition Authority is playing this pedantic game on a larger scale and has fined Facebook approximately $4 million because it advertises its services as "Free and anyone can join" on its front page: The Hungarian Competition Authority claimed that this was misleading because Facebook profited from their data: According to the competition authority, Facebook posted slogans such as “Free and anyone can join” on its opening page and help center, claiming that its services were free of charge. While true that users don’t pay a fee, they paid for their use of Facebook by driving profits to the company through its collection and use of their detailed data, such as consumer preferences, interests and habits, the authority said. It added that, using that information, Facebook sold advertising opportunities to its clients, with the ads reaching consumers through their insertion among users’ Facebook posts. The authority said that the notices about the free use of Facebook “distract consumers’ attention” from the compensation they provide the company — the provision and extent of their data and its consequences. That seems... incredibly silly. First off, it's ridiculously paternalistic and pedantic at the same time. Second, how many people were actually "fooled" by this. More to the point: if Facebook didn't have that slogan on its front page, does anyone honestly believe that it would have changed whether or not someone signed up? Third, the service is free. Of course, Facebook is trying to make a profit, but in this context, everyone knows that what Facebook means by "free" is that you don't have to pay money for it. The article linked above claims that part of the size of the judgment was due to the fact that once the Hungarian agency began investigating Facebook, it changed that global "slogan." I had no idea. I just looked and, yup: Okay, so now it says "It's quick and easy" rather than "It's free and anyone can join." Will that actually change anything? Seems doubtful. In the meantime, considering how pedantic and silly this whole thing is, I'm almost surprised that the Hungarian Competition Authority also didn't fine the company for the "anyone can join" part, since that's not "technically" true either, since the company has banned some people. It's one thing to say that Facebook should be regulated, or that it deserves to be fined over its behavior, but does anyone out there think this is a reasonable fine or will do anything to curb bad behavior? Permalink | Comments | Email This Story

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The Learn Amazon Alexa Development Bundle has 10 courses to help you learn how to get the most out of Amazon Alexa and Google Assistant. You'll learn how to customize Alexa by integrating APIs and AWS, how to use Alexa with both Arduino and Raspberry Pi, how to integrate your Google Actions with the Firebase database, and much more. It's on sale for $25, and use the code MERRYSAVE15 for an additional 15% off. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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At Techdirt we're no strangers to people disagreeing — often, let's say, vehemently — with our views on copyright. But I've still often been surprised by how angry some people get about the simple, factual observation that copying is not theft. We've made the point many times (and it remains true even if you think copyright infringement is a dastardly crime), and a few years ago we put it on a t-shirt and some other products via the print-on-demand platform Teespring, where we sell a bunch of gear. But you won't find the shirt at those links anymore, because last week we received notice from Teespring that it had been taken down... supposedly for copyright infringement. At first, it seemed like this was likely a simple error from an automated system (the takedown notification explained that it was not based on a complaint from a third party) and I suspected we had been caught up in Teespring's response to an unrelated (and amusing) phenomenon that was taking place at the same time: a bunch of artists and others online were aiming to prove that there are bots out there copying artwork from social media and selling it on print-on-demand sites, by spreading funny and extremely-infringing images which did, indeed, show up on several print-on-demand t-shirts soon afterwards. Oooh man, the website deleted the shirt (I wonder why...) But I really REALLY love this artwork as shirt, wouldn't it be amazing if we can buy this as a shirt or mug? 🥰 pic.twitter.com/GAmheljoT8 — Nirbion (@Nirbion) December 4, 2019 It would hardly be surprising if this spurred print-on-demand services into a not-too-discerning copyright sweep of existing products that the Copying Is Not Theft gear somehow got caught up in. As we are constantly pointing out, content moderation at scale is impossible to do well. I figured that a quick email to the "IP Escalations" address offered in the takedown notification, clarifying that the design does not in fact include any "third-party content" as the notification claimed, would get it reinstated. But to my surprise, they responded that they could not reinstate the campaign because it violates Teespring's Acceptable Use Policies. One of the six policies is about intellectual property — explicitly the problem according to the initial notification email — but they offered no response to my claim that the content was entirely original, and it seemed they were backing down from the IP angle and just going for a vague response of "it violates one of these five other rules". Since it certainly contains no nudity, hate speech, or violence, I can only assume they believe it either "promotes illegal activity" or (less likely given the definitions on their policy page) contains "false or misleading claims". Unfortunately all I can do is guess, because it seems like they really don't like being asked for an explanation. Upon first asking what policy we violated, I got a reply simply linking to the same policy page with no additional information. I clarified that I'd read the page, that we were not in violation of any of the policies, and asked which of the six in the list was the issue. It was at this point their true feelings started to peek through the mandatory please-and-thanks language of customer service: We apologize if you disagree with our decision and for any inconvenience this matter has caused. Please understand that we are not in a position to debate our policies or discuss this issue further; however, your feedback has been noted and we truly appreciate your time today. Sincerely, Team Teespring I told them I wasn't seeking a debate, and just wanted to know what policy we violated, and... You've been advised three times that the content has violated our acceptable use policy. You have been provided with the links to this policy for further information. This policy and choice to remove the content are not up for discussion. We apologize if you disagree with the decision. You will not receive anymore communication from us on this matter. Thank you, Team Teespring And so apparently that's that. I enjoy the sleight-of-hand in claiming that a list of six policies is an answer to my question of which specific policy we violated (and the sudden switch in their language from plural to singular when I emphasized this question), and the fact that the "IP Escalations" department we were specifically told to contact if we believed the takedown was in error considers this "not up for discussion". It seems most likely that someone at Teespring believes the phrase "copying is not theft" is promoting illegal acts, when in fact its purpose is to emphasize an important legal (and ethical, and practical) distinction that should be obvious but that a surprising number of people casually ignore or actively oppose — and, as noted, it remains important even if you are a supporter of strong copyright laws. Of course, Teespring is free to take down our stuff without an explanation or even a reason if it wants, and it doesn't have to offer an escalation contact at all, let alone a helpful one. And if it's true there was some sort of sweep going on and lots of people were contesting takedowns, we may still have simply been victims of sheer scale — though the unhelpful emails still make it clear that the decision was examined and confirmed by an actual human, so I'm still quite curious about the official rationale. But since it's "not up for discussion," the more important conclusion here is that it's time to start exploring alternatives to Teespring for our various lines of Techdirt gear. So today we're relaunching the Copying Is Not Theft gear in our new store on Threadless. For now we're just testing the waters with this new platform — the product lines and pricing are a bit different, which means some options are gone (no stickers for now) but we're also able to add some cool new ones, including notebooks, phone cases, buttons, bags and more! If all goes well, we may consider moving all our designs over to the Threadless store, or we may end up exploring some other options in the future. For now, get yourself some gear and remember: Copying Is Not Theft! Permalink | Comments | Email This Story

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It seems like only yesterday that AT&T CEO Randall Stephenson was promising on live television that if Trump followed through on his tax cuts, the company would dramatically boost investment, in the process creating thousands of new jobs. Not "entry-level jobs," mind you, but "7,000 jobs of people putting fiber in the ground, hard-hat jobs that make $70,000 to $80,000 per year." Each $1 billion in new investment, AT&T insisted, would result in 7,000 new jobs. "Lower taxes drives more investment, drives more hiring, drives greater wages," Stephenson said. Yeah, about that. Here on planet Earth, AT&T has revealed that the company's slated CAPEX for 2020 will actually be decreasing by about $3 billion next year. The company is also preparing to engage in a new round of significant job cuts as it fights off an ongoing investor revolt triggered by the company's bumbling obsession with merger mania, and a continued exodus of video subscribers. It's unclear how many employees will lose their jobs and/or benefits with this latest round of cuts (one of several in just the last few years), but the scale isn't expected to be subtle: "Everything is on the table," AT&T COO John Stankey said Tuesday at the UBS Global TMT Conference in New York. "It's a target-rich environment." AT&T's cost-reduction program initially will include a 4% cut in the operator's labor expenses -- representing roughly $1.5 billion of the operator's finances -- next year. During an investor event last week, AT&T CFO John Stephens explained that the initiative would target employees, contractors, benefits "and so forth." That is, if you're playing along at home, the precise opposite of what Stephenson promised. The Trump tax cut resulted in AT&T getting billions in immediate tax relief, and roughly $3 billion in tax savings annually, in perpetuity. Yet when it came time for AT&T to re-invest this money back into its network and employees, AT&T actually did the opposite and began laying them off in droves. Unions claim AT&T has laid off an estimated 23,000 workers worldwide since the Trump tax plan, with investors and executives unsurprisingly pocketing the savings. Anything even vaguely resembling accountability for these false promises has been utterly nonexistent. The dip in overall CAPEX is also the exact opposite of what AT&T claimed when it lobbied for the elimination of net neutrality. You'll recall AT&T executives and lobbyists repeatedly claimed that the FCC's net neutrality rules stifled sector investment, a claim indisputably disproven by an endless number of studies and reports. Even telecom CEOs themselves are on record clearly stating this investment apocalypse never actually occurred. Granted, it's worth noting AT&T has received countless billions in other regulatory favors thanks to a rubber stamp FCC that's just as unlikely to result in new jobs or network investment. Again, nobody anywhere has actually held AT&T accountable for these falsehoods. Nor is there any indication, on absolutely any front, that anybody intends to. And in the post-truth era, the folks who supported throwing billions at AT&T for doing nothing still somehow suggest the decision worked wonders, despite a convoy of evidence and data making it abundantly clear that's not true. All told, you can be fairly sure we'll learn absolutely nothing from this experience, and before long AT&T will line up, hand outstretched, quite accurately expecting Uncle Sam to repeat the process all over again. After all, the company has been engaged in the same tap dance for the better part of the last few decades with only fleeting efforts to do anything about it. Permalink | Comments | Email This Story

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Be careful what you wish for when you demand that internet platforms police the internet for any and all bad stuff. There was a lot of fuss and cringing when this story broke that part of TikTok's content moderation strategies included suppressing videos by disabled, queer, and fat creators. Leaked documents reveal how TikTok hid videos of people with disabilities. Queer and fat users were also pushed out of view. No matter how you look at it, this looks bad. And for good reasons. But, as the company itself claims, it had good intentions behind this, even if the execution was atrocious. There have been tons of reports of bullying on the platform -- and like with so many social problems that are making themselves more widely known thanks to technology, the first reaction of many is to blame the tech platform, and to demand they "fix it." And, a la the infamous paperclip maximizer thought experiment, what's the most efficient way to stop bullying? Some figured it might be to hide the likely-to-be-bullied rather than the actual bullies: The relevant section in the moderation rules is called "Imagery depicting a subject highly vulnerable to cyberbullying". In the explanations it says that this covers users who are "susceptible to harassment or cyberbullying based on their physical or mental condition“. According to the memo, mobbing has negative consequences for those affected. Therefore, videos of such users should always be considered as a risk and their reach on the platform should be limited. TikTok uses its moderation toolbox to limit the visibility of such users. Moderators were instructed to mark people with disabilities as "Risk 4". This means that a video is only visible in the country where it was uploaded. And, yes, there is a very reasonable argument that the content moderation team at TikTok/ByteDance should have recognized that this is a horrible way to deal with bullying, you can see how those desperate to deal with "the bullying problem" might end up thinking that this is the simplest path to get people to stop screaming at them about bullying. This is a key point that we keep trying to raise in the mad dash currently happening to put responsibility on platforms to "clean up" whatever mess politicians and the media see. There's this weird belief that the platforms can wave a magic wand and make bad stuff go away -- when the "easier" solution (if a morally questionable one) is to just figure out a way to hide the real problems or sweep them under the rug. This is why I keep trying to argue that if we're highlighting societal problems that are manifesting themselves on social media, expecting tech platform companies to magically solve societal problems is not just going to fail, but it's going to fail in spectacular and awful ways. This TikTok "hide the people we think might get bullied" is just one example of sweeping a societal problem under the rug to avoid having to improperly answer for it. Unfortunately, I fear most people will just blame TikTok for it instead. Permalink | Comments | Email This Story

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Earlier this year, after Netflix released an iteration of its Black Mirror series entitled Bandersnatch, which allowed the viewer to choose their own story path through the narrative, the company behind the famed Choose Your Own Adventure books from our childhood sued. Chooseco, armed with a trademark registration for "Choose your own adventure", claimed that Bandersnatch infringed on that trademark, first because the film has a nod of homage to the literary series within the script, and second simply because many in the public compared the film with the books of their youth. Meanwhile, thanks to the renewed attention that Netflix gave CYOA books -- for FREE! -- , Chooseco inked a deal with Amazon to create CYOA style narratives for the Alexa device. That success hasn't stopped Chooseco's bullying ways, however. Recently, itch.io's leadership has publicly warned indie game developers to stop describing their games as choose your own adventures on the site after Chooseco issued several takedowns of games that did so. In case you were concerned that the facts before the public didn't perfectly convey how absurd this all is, never fear: Itch.io founder Leaf Corcoran told developers about the takedowns this afternoon. “Warning to any devs using the phrase ‘choose your own adventure’ to describe their games, Chooseco is issuing takedown notices,” he wrote on Twitter. Corcoran tells The Verge that the games include Purrfect Apawcalypse, an “apocalyptic dog dating choose your own adventure game”; a “choose your own dating sim text adventure” game called It’s a Date; an unofficial GameBoy game called Choose Your Own Adventure GB; and New Yorker writer Luke Burns’ A Series of Choose Your Own Adventure Stories Where No Matter What You Choose You Are Immediately Killed by a Werewolf, whose plot is self-explanatory. Clearly, these indie games with mere descriptions in their summaries and/or game titles are a grave threat to the Chooseco empire. After all, what member of the public could possibly stave off confusion over a video game being accurately described as involving a choice in adventure without naturally assuming that this must be from the same company as the books of their childhood? This is all stupid on many levels. Chooseco's trademark is at least partially descriptive. I know that's true, because some of the games that have been the victim's of this bullying have only used the trademark in their games'...you know...descriptions. That feels about as open and shut an answer as these questions tend to have. Add to that the fact that literature and Amazon Alexa narratives aren't the same as video games and I would question whether these are even in the same market as Chooseco products. Finally, I would also question whether there is a single iota of potential public confusion to consider here. And, to be clear, the end result of this bullying thus far is part mockery by other publishers and part simply ignoring Chooseco entirely. Mainstream publishers have found clever ways to get around the trademark. A Gravity Falls branching-choice book, for example, is billed as a “Select Your Own Choose-Venture” novel. And you can’t officially tag a game as “choose your own adventure” on Itch.io; it’s automatically converted to “interactive fiction.” Even so, an Itch.io search for “choose your own adventure” still turns up a lot of results. (The common abbreviation “CYOA” also apparently hasn’t triggered any notices.) It’s a widely accepted informal genre name, and Itch.io is a platform that favors offbeat, often free-of-charge games from independent developers. Your bullying has resulted in mere mockery and dismissive waves. Turn to page 26 if you'd like to go to your room and think about what you've done, or turn to page 77 if instead you want to continue to make the world hate you with your bullying. Permalink | Comments | Email This Story

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The Blurred Lines lawsuit is the case that just keeps on giving... if the gift you're looking for is legal shenanigans and ridiculous situations. As you'll recall, that was the case in which Marvin Gaye's family suggested that because the Pharrell/Robin Thicke song "Blurred Lines" paid homage to Marvin Gaye's "Got To Give It Up" with a similar groove, that it was infringing on Gaye's copyright. The whole thing was crazy -- and somehow the court bought it. Despite there not being any actual copying of any copyright-protected content, just the mere similarity of feeling in the song is enough to infringe. This has created quite a frenzy of nonsense, with artists now afraid to even mention their inspirations, lest they get sued, and sued again for every song they release. The situation has gotten so insane that even the RIAA has stepped in to say that perhaps copyright has gone too far in protecting works. Yes, the RIAA said that copyright may be protecting too much. This is pigs flying, snow in hell, cats and dogs living together, madness. And, believe it or not, the original case apparently is not fully over yet. During the original case, Pharrell gave a deposition claiming that he didn't intend to copy Marvin Gaye: "I did not go in the studio with the intention of making anything feel like, or to sound like, Marvin Gaye." But... in a recent GQ published video interview between Pharrell and famed music producer Rick Rubin, Pharrell made an off-hand comment about this same issue. Throughout the interview, he talks about "channeling" other artists when he's in the studio. Then somewhere along the line he mentions the Blurred Lines mess, by saying (around 28 minutes into the interview): Pharrell: But I think for the most part, what we always try to do was reverse engineer the songs that did something to us emotionally and figure out where the mechanism is in there, and as I said to you before, try to figure out if we can build a building that doesn't look the same but makes you feel the same way. I did that in Blurred Lines and got myself in trouble. Rubin: Ridiculously. Pharrell: Stevie Wonder told me, he said, 'you gotta get the right musicologists in there because juries don't understand -- it's very technical what you've done.' Rubin: Because the song is nothing like the song Pharrell: Nope, but the feeling was. Rubin: But the feeling is not something you can copyright. Pharrell: No, you can't copyright a feeling. All salsa songs sound pretty much the same. Rubin: Yes. And reggae songs. Any genre. Pharrell: 100 percent. Rubin: Trap music sounds relatively similar. Pharrell: But here's the difference. What we failed-- And it hurt my feelings. 'Cause I would never take anything from anyone. And that really set me back.... But I was really hurt, because what I realized all too late was that what he was trying to tell me was that I needed to do was use my gift to make music, to reverse engineer the disparity between the truth and the jury's uneducated opinions. And I say that, because rayon and silk feel the same, but we understand that there's a clear difference. And that was what happened. Rubin: Yeah. Pharrell: Like, I really made it feel so much like it, that people were like, oh, I hear the same thing. And, so, in a new filing by the Gaye Estate (first noted by THREsq), they're claiming that Pharrell perjured himself in his deposition by saying that he had no intention to channel Gaye: In the November 4, 2019 Interview, among other things, Williams admits the following: (1) in creating a new song, he often tries to “reverse engineer” an older song that did “something to us emotionally,” so that he can “figure out where the mechanism is in [the original song],” and “build a building that doesn’t look the same but makes us feel the same way,” and that he “did that in ‘Blurred Lines’ and I got myself in trouble;” and (2) he actually did too good of a job in this reverse engineering when it came to “Got To” and “Blurred”: “I really made it [‘Blurred’] feel so much like it [‘Got To’], that people were like, oh, I hear the same thing.” As discussed further below, these admissions are irreconcilable with Williams’s repeated, sworn testimony in this action that: neither “Got To” nor Marvin Gaye ever entered his mind while creating “Blurred,” that he did not try to make “Blurred” feel like “Got To” or sound like Marvin Gaye, and that when creating music Williams looks “into oblivion. We look into that which does not exist.” Hilariously, the filing tries to make sure that the court does not pay attention to other parts of the interview -- notably, the long section about how it's ridiculous to argue that you can copyright a "feeling." As a matter of introduction and clarity, and to avoid all doubt so there is no misunderstanding about what this Motion is not about: this Motion is not about whether Williams and Robin Thicke (“Thicke”) committed copyright infringement with respect to “Got To.” This Motion is also not about Williams’s very public pronouncements in this Court, in the media, in the November 4, 2019 Interview, and elsewhere that one cannot copyright a feeling, that all music within a genre supposedly sounds the same, and his belief that “Blurred” and “Got To” are not compositionally the same (one supposedly being “rayon” and one being “silk” according to Williams). The jury, this Court, and the Ninth Circuit Court of Appeals have all spoken on those issues. The whole case is a mess, but this part of the dispute, including this silly claim of perjury, is just an attempt to get even more money out of Pharrell, this time in seeking attorneys' fees for the Gaye family's lawyers. And, of course, all it will really do is remind musicians to never credit their sources, to never talk about their process, and to hinder future musicians for years, if not decades. All for an extra buck. Permalink | Comments | Email This Story

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More than a quarter-century ago, then-Attorney General William Barr gave the DEA something it shouldn't have had and something it certainly hadn't earned. The War on Drugs was a forever war and it demanded an expansion of the government's powers. AG Barr OK'ed it: the warrantless bulk collection of multiple third party records, including call records, banking information, and the tracking of purchases. Twenty-seven years after the fact, the DOJ's Inspector General released its review of these programs, finding they had been crafted and deployed with no underlying legal basis. Some of these programs are defunct. Others have been codified into quasi-legitimacy by War on Terror-related government power expansions. Twenty-seven years later, William Barr is Attorney General once again. And he's likely just as interested in expanding law enforcement surveillance programs (without worrying too much about how legal they are) as he was three decades ago. He has shown no love for the public nor their rights since he took office, making it crystal clear that neither the administration he works for nor the law enforcement agencies he oversees should be questioned by other branches of the government, much less the public they're supposed to be serving. More questions are on the way, though. Senator Ron Wyden and Senator Pat Leahy want some answers from the DOJ about Barr's past legal misadventures and what he's doing now to address the findings of the long-delayed Inspector General's report. “Mr. Barr’s authorization of this sweeping surveillance program without requiring, at minimum, an appropriate legal analysis, was not consistent with his oath to support and defend the Constitution and it likely amounted to professional misconduct,” Wyden and Leahy wrote. “Attorney General Barr knew, or should have known, that neither statutory law nor federal case law permitted the DEA to sweep up, in bulk, billions of records of Americans’ telephone communications. We write to ask that you open an investigation into the authorization of this recently-disclosed illegal, bulk surveillance program that collected billions of records of Americans’ telephone calls without conducting any legal analysis of the program.” The program Barr authorized ran for more than 20 years, finally being mothballed in 2013 following the Snowden leak exposing the NSA's bulk phone records collection. The collection continued past that point, but was modified significantly, at least according to the DOJ's public statements. The Senators want specifics. Their letter [PDF] asks for details about the long-running program Barr summoned into existence for President Bush the First. 1. During the two decades in which the DEA operated Program A, did any telecommunications companies ever raise questions about its legality, refuse to comply with a DEA subpoena for bulk data, or seek judicial review? 2. According to the OIG report, the DEA transitioned in 2013 from collecting bulk records under Program A to requesting records about specific targets. What legal analysis, if any, did DOJ and DEA engage in before beginning this reconfigured surveillance program? If no legal analysis was conducted, why not? 3. Under target-specific data collection operations, DEA officials must now provide "reasonable articulable suspicion" that the target is involved in drug activity. a. What safeguards are in place to ensure the target is actually involved in drug activity? b. What constitutes involvement in drug activity? c. If someone is targeted under this program, and it is later revealed there was no nexus to drug activity, what happens to the data that the DEA collected, and is the person ever notified that data about them was obtained by the government? d. What actions will be taken to ensure this program will not be abused in a similar manner to the programs discussed in the OIG report? The Senators also want to know what the DOJ is doing to prevent this sort of thing from happening again. They're also asking the DOJ if it's following through with the recommended overhaul of its parallel construction practices as well as the internal legal process authorizing new bulk records collection programs. Considering Barr's running the place again, it seems unlikely answers are forthcoming, and -- if and when answers do eventually arrive -- they will be forthcoming. The new AG has made it clear the administration doesn't need to answer to anyone, not even other branches of the government that are supposed to ensure one branch doesn't grab too much power for itself. The DOJ doesn't like talking about its screw-ups or its secrets or its ridiculous belief that Drug Wars are good and easy to win. AG Barr's position at the head of the department only buttresses these positions. I wish Wyden and Leahy all the luck in the world, but something tells me the clock will run out on this administration before the DOJ's willing to talk about a twenty-seven-year-old, potentially illegal surveillance program. Permalink | Comments | Email This Story

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As Senate Judiciary Committee Chair Lindsey Graham has continued his latest quest to undermine encryption with a hearing whose sole purpose seemed to be to misleadingly argue that encryption represents a "risk to public safety." The Defense Department has weighed in to say that's ridiculous. As you may recall, the DOJ and the FBI have been working overtime to demonize encryption and pretend -- against nearly all evidence -- that widespread, strong encryption somehow undermines its ability to stop criminals. However, it appears that other parts of the government are a bit more up to date on these things. Representative Ro Khanna has forwarded a letter to Senator Graham that he received earlier this year from the Defense Department's CIO Dana Deasy, explaining just how important encryption actually is. The letter highlights how DoD employees rely on the kind of strong encryption found on mobile devices and in VPN services to protect the data of their employees, both at rest (on the devices) and in transit (across the network). All DoD issued unclassified mobile devices are required to be password protected using strong passwords. The Department also requires that data-in-transit, on DoD issued mobile devices, be encrypted (e.g. VPN) to protect DoD information and resources. The importance of strong encryption and VPNs for our mobile workforce is imperative. Last October, the Department outlined its layered cybersecurity approachto protect DoD information and resources, including service men and women, when using mobile communications capabilities. [....] As the use of mobile devices continues to expand, it is imperative that innovative security techniques, such as advanced encryption algorithms, are constantly maintained and improved to protect DoD information and resources. The Department believes maintaining a domestic climate for state of the art security and encryption is critical to the protection of our national security. So, there you have it. The Defense Department believes that strong, unbroken encryption is critical to national security, as opposed to the DOJ which appears to think (incorrectly) that it undermines national security. At the very least, this should mean that politicians should stop uncritically claiming that encryption is some sort of "debate" between privacy and national security. It is not. Encryption protects both of those things. Breaking encryption harms both privacy and national security... in the hopes that it might make law enforcement's job marginally easier. Permalink | Comments | Email This Story

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An all-in-one solution to your computing needs, this certified refurbished Apple iMac brings a wallop of processing power packed inside a 21.5" HD LED display. It sports an Intel Core i3-2100 Dual-Core 3.1GHz CPU with 4 GB of DDR3 RAM for next-level multitasking, and a 250 GB SATA hard drive for storing all of your important files and media. It's on sale for $349 and use the code MerrySave15 for an additional 15% off. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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With the DOJ (run by former Verizon lawyer William Barr) and the FCC (run by former Verizon lawyer Ajit Pai) eager to rubber stamp Sprint's $26 billion, competition-eroding merger with T-Mobile, a lawsuit from a bipartisan coalition of states is now all that stands in the way in the deal. That lawsuit began Monday, with state AGs making it very clear that every meaningful economic metric indicates the deal will erode competition, raise rates, and result in thousands of layoffs as redundant employees are inevitably eliminated. While Sprint and T-Mobile (and the army of consultants, lobbyists, think tankers, and government officials paid to love them) insist the deal will be wonderful for America, financially independent economists paint a decidedly different picture. One in which ongoing consolidation in the space only drives up wireless data pricing for American consumers who already pay some of the highest prices in the world for what's routinely ranked as mediocre service (whether we're talking about speeds or overall video quality). But underneath the deal's marketing veneer, industry giants know very well the reduction in competition will let them charge higher rates. You'll notice that AT&T and Verizon haven't lifted a finger to thwart the deal, suggesting they're perfectly fine with its impact (something that wouldn't be happening if they actually thought the end result would be a more competitive sector). And at the trial this week, AG lawyers highlighted that Sprint executive emails make it perfectly clear they know the deal will raise rates: "Roger Sole, Sprint’s chief marketing officer, said in a text message in 2017 to Marcelo Claure, the carrier’s chief executive officer at the time, that the deal could mean an increase of $5 a month in average revenue per subscriber. Industry leaders AT&T and Verizon Communications would also benefit with fewer players in the market, he said. “And they DO NOT pay anything for this,” Sole wrote to Claure. “The benefit of a consolidated market.” The goal of the deal is less competition, providing a green light for even higher prices, which is effectively the same outcome we've seen from every major telecom union over the last 30 years. Three decades of data also makes it abundantly clear that pre-merger promises are worthless. But if the state AGs lose this case, the federal government is going to ignore that data -- and history -- and rubber stamp the deal anyway. You know, just because. Permalink | Comments | Email This Story

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