posted about 2 hours ago on techdirt
Earlier this year, we mentioned the Texas lawyer Jason Lee Van Dyke in relation to a story in which Twitter, ridiculously, banned Ken "Popehat" White after he wrote about threats from Van Dyke. We had written about Van Dyke years earlier when he sued the Tor Project because a revenge porn site was using Tor. We also noted that that case involved a guy who had been declared the leader of a hate group, Kyle Bristow -- and appeared to involve Van Dyke deliberately and knowingly "serving" the wrong party. The revenge porn site that Van Dyke claimed he was targeting had sarcastically provided Bristow's address as its address to mock Van Dyke, and Van Dyke then claimed he had properly "served" the revenge porn site by serving it on Bristow. That post, from back in 2014, also included an awful lot of Van Dyke cursing out people and threatening to sue lots and lots of people. Oh, and also declaring "it's my job to violate the civil rights of people like you" to one critic. The more recent story, involving threatening Ken White and Asher Langton, showed that not much has changed with regards to anger management and Van Dyke. I won't rehash the entire story, but Ken White summarized it earlier this year. Just suffice it to say, Asher Langton turned up quite a bit of evidence suggesting that Van Dyke was advertising his legal services to white nationalists on Stormfront. Since then, Van Dyke has, repeatedly, threatened to sue and (separately!) to physically harm both White and Langton. He's also declared himself to be part of the "Proud Boys" -- a nutty group of self-declared chauvinists, who get upset if you suggest they're racists or neo-Nazis, even if many of the distinctions appear to be quite fuzzy. Either way, they appear to get quite upset if anyone calls them those things, even though the press regularly associates them with racists, neo-nazis or the "alt-right." Van Dyke has also threatened to sue a number of news organizations for these claims, and actually did sue a small local news site in Ohio called the Mockingbird. The Mockingbird published this article about Proud Boy antics in Ohio -- which led Van Dyke to send Mockingbird a letter requesting the site delete the article, no longer write about the Proud Boys and pay $10,000. Mockingbird's Gerry Bello responded appropriately, telling Van Dyke to fuck off, but also stating Bello's opinion (backed up with evidence) that Van Dyke is a Nazi. It is over this letter that Van Dyke then sued (not the original article that inspired the bumptious threat letter). The lawsuit was filed in county court in Denton, Texas, which seems unwise. Texas actually has a fairly robust anti-SLAPP law that the courts have construed broadly to cover all sorts of SLAPP suits, making Texas one of the strongest defenders of free speech in the country. Anyway, you can read Van Dyke's complaint here. Mockingbird removed the case from the local county court to the federal district court late last week (we'll see if Van Dyke tries to block that). Van Dyke is representing himself. The crux of the lawsuit: On information and belief, Defendants are associated with a domestic terrorist collective known as “Antifa” that prides itself on harassing, defaming, and committing acts of violence against persons and groups that espouse conservative groups. In this instance, Defendants wrongfully accused members of the Houston, Texas and Columbus, Ohio chapters of “The Proud Boys” of the following: (a) being “neo-Nazis”; (b) engaging in a hate crime by placing hand-drawn swastikas into mailboxes; (c) engaging in “ethnic cleansing” during hurricane relief efforts in the Houston area; and (d) roaming the nation in an effort to commit acts of mass murder against minorities. It should be noted in this case that Plaintiff was present with the Houston Proud Boys during Hurricane Harvey relief efforts and assisted them in rescuing residents in need of evacuation and in the distribution of relief supplies such as food, bottled water, cleaning supplies, and other items to residents of areas affected by the hurricane. Plaintiff sent a demand letter for Defendants to issue a retraction of these statements (which clearly meet the criteria for defamation per se) and Defendants responded by publishing the letter attached hereto as Exhibit “B” on their website Because of all of this, Van Dyke insists Bello/Mockingbird have committed libel per se, specifically in reference to the statements about Van Dyke being a Nazi, as well as statements Bello made claiming Van Dyke had a previous arrest and conviction. Bello claims this was "on weapons charges and domestic violence." Van Dyke counters that it was a misdemeanor weapons charge -- not domestic violence -- and has since been expunged. He also claims that Bello wondering if Van Dyke is forum shopping his lawsuit is defamatory, as might also be Bello's statement that under his conviction Van Dyke should not be allowed to possess firearms. Amusingly, in Van Dyke's lawsuit, he also disputes that he was the lawyer pitching for business on Stormfront, but insists that he's not suing over that because it's not libel "per se." It does appear that Bello certainly goes a bit closer to the line than I imagine most lawyers would advise in making statements about Van Dyke, but the "Nazi" line is clearly protected opinion or rhetorical hyperbole. The throwaway line about forum shopping is clearly not defamatory either. The statement about whether he can possess firearms was presented as a question rather than a statement, so again is a stretch. As for getting the specific details of the conviction wrong, Bello doesn't cite where he got that information, but it is true -- as Van Dyke readily admits -- that he was convicted on a misdemeanor firearm charge. So Van Dyke would have to show that Bello not only got things wrong beyond that in a defamatory way, but that Bello knew the information he posted was false. That's... a tough bar to reach. Bello/Mockingbird's "Original Answer" is fairly short on details, other than denying all the claims and (for now) throwing out all possible affirmative defenses (I assume a more specific answer will be forthcoming later). Bello's lawyer has also said that they'll file an anti-SLAPP motion, though that does not appear to have happened yet. Meanwhile, Bello has launched a crowdfunding campaign as well. Oh, and we're not even remotely done yet. A few weeks back, Van Dyke also got into a Twitter spat with, of all people, Talib Kweli. While the conversation is now gone (in part because Twitter recently suspended Van Dyke's account), here's how Kweli describes it: “His first tweet to me was that he was a defense attorney and worked with mentally challenged people,” explained Kweli. “He wrote, ‘You are stupider than the mentally challenged people I work with,’ and so that caught my eye immediately, because why would a defense attorney be upset at a black stranger and starting using his own clients to engage in harassment?” Kweli responded to the tweet, explaining that he doesn’t start arguments, but is willing to engage when challenged. “And so, I engaged him,” he said. “And the way I engage people who harass me like that is I always ask them to explain their position, because if you ask a racist or a bigot to explain their position, it falls apart.” As this went on, Kweli eventually posted Van Dyke's publicly available business contact info -- and, not unlike Ken White, Twitter stupidly temporarily suspended Kweli's account, because (again) Twitter is bad at understanding the difference between abuse and calling out abuse. Over the last few months and weeks, Van Dyke has been ranting about Kweli, Langton and White. He even wrote up and posted completely made up stories about Langton and White, calling them satire. It seems like he thinks he's proving a point, though what point is unclear. As for why Van Dyke was finally suspended from Twitter, it was apparently for tweeting a pretty gruesomely horrible racist tweet -- involving both the n-word and a noose. In the HuffPo article, they spoke to the president of the Texas state bar, who does not seem happy about Van Dyke's actions: “The statements attributed to this individual are reprehensible and contrary to the values we hold as Texas lawyers,” State Bar of Texas president Tom Vick said in an email to HuffPost. “I condemn them in the strongest terms.” Meanwhile, Van Dyke has been posting (on various other social networks) increasingly angry messages about Kweli -- many of which have pretty clear racist overtones, and some of which include threats of violence. He complains about Kweli being "uppity" while promising to beat him and skin him alive. He compares Talib to Amadou Diallo, the man assassinated by the NYPD in 1999. He also says that Talib will have to change his name to "Toby", a pretty damn likely reference to the famous scene in Roots in which Kunta Kinte is whipped by his owner, until he says his name is Toby -- at which point the owner says "Aye, that's a good n****r." So, yeah. If Van Dyke is trying to portray himself as not being racist, he's not doing a very good job of it so far. Holy shit. pic.twitter.com/w99aBStoP8 — Asher Langton (@AsherLangton) November 18, 2017 pic.twitter.com/OpBAakOX3P — Asher Langton (@AsherLangton) November 18, 2017 This seems police worthy pic.twitter.com/0BOKgS3FsN — tristan *vince* vaughan anthony (@shiftevil) November 18, 2017 And, because Van Dyke never seems to find the bottom of the hole he keeps digging, Asher Langton posted the following screenshot of Van Dyke not only promising to sue White, Langton, Kweli and the Huffington Post today, but also saying that he doesn't care if he gets disbarred or sanctioned, and if they do he'll defend himself with a gun. Welp. cc: @Popehat @TalibKweli pic.twitter.com/SwrJUB8MGO — Asher Langton (@AsherLangton) November 17, 2017 If you can't see that, it says: No longer welcome where I've trained for years. This is the final straw. Langton, White, Kweli, HuffPo - they are all getting sued first thing Monday morning. This ends now. They can disbar me if they want, I don't give a damn. If they sanction me, my property is defended with a 50 BMG. I'm guessing that the Texas bar might not like that one so much either -- nor any court where these lawsuits may be filed. Of course, we saw similar threats in what we posted about Van Dyke years ago as well, which did not lead to lawsuits. This time, he has sued Bello and Mockingbird, though, so perhaps he will attempt to follow through on these other threats also. Apparently he has sent Mockingbird/Bello's lawyer the following email, asking to amend the original complaint to raise the damages from $60,000 to $10 million and to add White, Langton, Kwelli, Huffington Post and Andy Campbell (the author of the HuffPo piece). It is, at the very least, unclear how he thinks any of this helps him rather than digging him deeper and deeper into a hole. As far as I can tell, Van Dyke seems upset that he's facing the consequences of his own actions -- which include threats of violence and lawsuits in addition to a variety of other highly questionable statements. And rather than recognize that perhaps he shouldn't do those things, he's responding to people who document his own statements by doing even more of the same, which only continues the cycle. We'll see if he's actually foolish enough to follow through on this lawsuit. It is unlikely to end well. Not only are there unlikely to be any legitimate claims, it makes no sense to add them to this other lawsuit, which is about an entirely different set of statements. Randomly joining together other people who have called you out separately hardly seems like good lawyering. It does, however, remind us of Rakofsky v. the Internet, in which a young (and not very good) lawyer sued basically everyone who criticized him. It didn't end well. And, of course, that one didn't include threats of violence mixed in. I suspect he's not interested in taking our advice -- he has regularly mocked Techdirt any time we've written about him -- but there's a time when the correct response is to stop digging. Suing people for calling you out won't end well. Threatening violence, repeatedly, over criticism is not a good look, especially for a lawyer. Permalink | Comments | Email This Story

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Microsoft Server Infrastructure is used by corporations throughout the world to effectively manage their data, communication systems, networking capabilities, and much more. It's one of the most important server platforms on earth, which is why specialists are continually in demand. In this 27 course super bundle, you'll master Microsoft SQL to work effectively with data before covering essentially the entire library of Microsoft Certified Solutions Expert (MCSE) subjects, gaining the skills you need to ace the requisite exams and earn certifications that will enable you to work professional with Microsoft servers. This bundle is on sale for only $49. 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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posted about 3 hours ago on techdirt
We've repeated this over and over again, but the Constitutional rationale for copyright is "to promote the progress of science" (in case you're wondering about the "useful arts" part that comes after it, that was for patents, as "useful arts" was a term that meant "inventions" at the time). "Science" in the language of the day was synonymous with "learning." Indeed, the very first US copyright law, the Copyright Act of 1790 is literally subtitled "An Act for the Encouragement of Learning." Now, it's also true that the method provided by the Constitution for the promotion of this progress was a monopoly right -- locking up the content for a limited time. But the intent and purpose was always to promote further learning. This is why, for years, we've questioned two things: First, if the monopoly rights granted by copyright are hindering the promotion of learning, should they still be Constitutional? Second, if the goal is the promotion of learning, shouldn't we be exploring if there are better methods to do that, which don't involve monopoly rights and limiting access. And this, of course, leaves aside all the big questions about how much copyright has changed in the past 227 years. Still, I'm thinking about all of this again in response to a new report -- first found on BoingBoing -- noting that 65 out of the 100 most cited papers are behind a paywall. The report is interesting and depressing. It doesn't just point out that these 65 papers are behind a paywall, but notes the price of the article, and what the effective total price to cite really is (which they list as "cost to buy individually"). The web was built specifically to share research papers amongst scientists. Despite this being the first goal of the modern web, most research is still published behind a paywall. We have recently highlighted famous math papers that reside behind a paywall as well as ten papers that have achieved a near rockstar status in research and the public. Here we systematically look at the top one hundred cited papers of all time and find that 65\%65%​ of these papers are not open. Stated another way, the world’s most important research is inaccessible from the majority of the world. In case you're wondering, the average price to access each article is $32.33 (and the median is $32), with the range being $4 to $41. There aren't too many down around the $4 range, mind you. It's pretty much an outlier. As you'd suspect from the average, most are priced in the $25 to $40 range. Of course, it's worth thinking carefully about this -- especially in an age where a useful service like Sci-Hub, which has created a library of academic research, open to all, is being attacked as an infringer, with all sorts of attempts to shut it down. Does this really make sense if the goal of copyright is to increase learning? (It's a separate discussion altgoether whether the purpose of copyright was ever really to increase learning, or if that was just a fig leaf to cover over the idea that it was a monopoly right for publishers). The people writing these academic papers are almost never incentivized by the copyright. Hell, in most cases, the journals they publish in require the copyright be turned over to the journal. The journal, which profits massively from all this free labor, seems to disproportionately benefit from this setup. It gets the copyright. It charges insane amounts -- mainly to a captive audience of universities which feel required to pay extortionate rates -- and everyone else gets left out (or has to resort to infringement). It's difficult to see how anyone can justify this system in an intellectually honest manner. The supporters of the system will fallback on a few points: they will claim that the journals provide peer review -- leaving out that this is also done as volunteer (free) labor, and there's no reason it need be done via a journal. On top of that, there's the fact that the existing peer review system is a joke that doesn't actually work. Some will argue that the journals provide a level of trust and credibility to papers -- and that's true, even if they still often publish bogus papers. And, of course, all of this ignores the internet. The internet solves nearly every "problem" that journals claim they solve, and does it much better and more cost effectively. With the internet, peer review can be better and more efficient (and can let in many more perspectives.). On the internet, distribution can be much wider (which, on top of everything else, encourages greater peer review!). And so we're left in a position where the only "benefit" of copyright in academia is to prop up a journal system that is expensive and inefficient, and which is almost entirely obsolete in the age of the internet. That's not to say there isn't any role for journals -- there clearly are, as we see from various open access journals that take a much more modern approach to these issues. But, in looking all of this over, it seems like an unfortunate legacy of the copyright system that is props up the broken model of expensive, obsolete, inefficient and poorly vetted journals, while outlawing the efficient, cheap and useful model of an online library of knowledge like Sci-Hub. If an alien were to come down to the planet today, and you had to justify why Sci-Hub is illegal and the journals are considered admired institutions of academia, I don't think anyone could legitimately do so. And when that's the situation, it seems like it's time to fix the system that lead to such a completely broken result. Permalink | Comments | Email This Story

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posted about 7 hours ago on techdirt
There's little more chilling to First Amendment freedoms than the possibility of spending decades in jail for documenting a protest that turned into a riot. But that's exactly what independent journalist Alexi Wood is facing. Traveling from Texas to Washington DC to document anti-Trump protests on Inauguration Day, Wood was "kettled" and arrested along with the protestors he was covering. He wasn't the only journalist to be detained for hours and hit with charges, but most of the others have seen their charges dismissed. Wood is facing charges that could see him jailed for several years, thanks to DC prosecutors who have decided to punish the journalist for being in the vicinity of destructive criminal activity. Alexei Wood faces up to 60 years in prison for moving alongside and videotaping rioters as they protested President Donald Trump's inauguration in Washington, D.C., on Jan. 20. According to Wood, he was livestreaming the protest - videotaping events and putting them on the internet as they happened. He said the livestream is still online, and shows he did nothing wrong. "It documents everything I said or didn't say, do or didn't do - clear evidence,” Wood said. “Even the judge said there was 'zero evidence' I did property destruction." Wood is one of seven journalists who, with a group of more than 200 protesters, were penned in and arrested that day. Charges against five of the journalists have been dropped. Indeed, his livestream of the events leading to his arrest can be seen below, and nothing in it shows him participating in destructive acts. But that matters little to DC prosecutors, who have decided to threaten the act of journalism by creatively stacking charges. [O]n April 27, the Superior Court of the District of Columbia returned a superseding indictment which added additional charges for some 212 defendants, three of whom had not previously been charged. With new felony charges including urging to riot, conspiracy to riot and destruction of property, many of the defendants are facing up to 80 years in prison. Many other defendants, among them journalists, are facing more than 70 years. When a "conspiracy to riot" describes the act of documenting a riot, things have gone horribly south in the legal system. It's not like the government is facing a lack of chargeable suspects. There are more than 200 to choose from, with a majority of those being participants in the demonstration. A smaller number participated in the destruction of property. Then there's Alexi Wood, who was in the right place at the right time journalistically-speaking, but the wrong place/wrong time for everything else. The only explanation for this charge stacking is prosecutors' desire for easy wins. Piling up felony charges pushes people towards accepting plea deals, even if they haven't done anything wrong. A couple of misdemeanors and being free to go usually sounds better than a criminal trial and the possibility of a jury handing down a guilty verdict with 15-20 years of jail time attached If this goes forward, the evidence should clear him of charges. But even if it does go quickly and smoothly, Wood's life has been permanently changed, and not for the better. He hasn't been able to concentrate on journalistic efforts since he was arrested, thanks to the severity of the charges. If the government finds a way to hang one on Wood, independent journalists and those working for smaller agencies will start steering clear of protest coverage just to be on the safe side. And that may be the government's unstated goal -- fewer eyes witnessing anti-government sentiment and/or the tactics used by law enforcement against people utilizing their First Amendment rights. Permalink | Comments | Email This Story

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When Charter Spectrum acquired Time Warner Cable and Bright House Networks in a blockbuster $69 billion merger last year, the company promised the deal would result in all manner of "synergies" and consumer benefits. But as is the case with most telecom megamergers, most of these acquired users say the deal only resulted in significantly higher prices -- and somehow even worse customer service than the historically awful service the company was already known for. In many areas, users say they've been socked with price hikes up to 40% for the exact same service. Charter CEO Tom Rutledge, the highest paid executive in America last year, stated that customers were "mispriced" and were simply being shoved in the "right direction." Things got so bad, that Lexington was forced to hold a town hearing last summer to address overwhelmingly negative public sentiment toward Charter's dysfunction. Like many American cities, consumers in Lexington often only have the choice of one cable broadband provider, since the local phone companies have failed to seriously upgrade their fiber networks. Also like in many American cities, locals tell a tale of a company that faces so little competition in its market, it simply doesn't have to give much of a damn: "Following a brief presentation where provider representatives highlighted the company's expanding network, workforce, and investments in infrastructure, customers stood up one by one to tell a different story. Among the themes: unpredictable bills, questionable internet speeds, and poor customer service. One customer, Christian Torp, complained that the company repeatedly charged him for his own equipment. "I've probably over the years spent 30 or 40 hours on it," he told WUKY. "I'm a father and an attorney. I don't have the time to spend dealing with their fraud." It should be noted that Kentucky is one of 23 states that have let incumbent ISPs quite literally write state telecom law protecting towns and cities from building their own networks or striking public/private partnerships for better broadband. Fortunately for Lexington residents, city leaders were able to convince private operator MetroNet to come to town and build a $70 to $100 million network to try and ease the local duopoly logjam. Construction of the network will begin in January, and should start offering some real, gigabit-capable fiber competition by next summer: "Just in time for Christmas, Santa Claus is coming to town," (Lexington Mayor Jim) Gray said at a news conference officially announcing that Indiana-based MetroNet plans to spend as much as $100 million building a fiber-optic network that covers the city’s entire urban service area. MetroNet pledged Tuesday to spend at least $70 million to build the network over the next three to four years if it receives a cable franchise from the city. Gigabit speed is equivalent to moving data at 1,000 megabits per second. Lexington’s average internet speed is 16.2 megabits per second, according to some studies. Lexington was fortunate to be attractive enough to private companies to strike such a deal. But in countless less developed cities and rural American markets, private ISPs simply don't think the slower return on their investment is worth their time. As a result, many towns and cities have struggled for years with substandard service and sky-high prices. In turn, many have considered building their own networks or striking partnerships with companies like Google Fiber, only to discover that ISPs like Charter have quite literally purchased laws making that impossible. So while Lexington was lucky enough to attract a private investor, there's countless U.S. broadband markets that don't get to see this kind of happy ending. Permalink | Comments | Email This Story

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This week, our first place winner on the insightful side is That One Guy with a pretty excellent summary of the ongoing crusade by the monkey selfie photographer: Some legacies are better than others He could have been remembered as a nature photographer, but that was too dull. He could have been remembered as the person who owned the camera the 'monkey selfie' was taken on, but fame like that would have faded from view far too quickly. He could have been remembered as someone lucky enough to be in the right place at the right time for a one-in-a-million shot to be taken using his gear, but dumb luck is just too tame. No, instead he's going to be remembered as the guy who decided that threatening people for using a photo in the public domain was a good idea. He'll be remembered as the guy sued by PETA, who claimed to be bringing the lawsuit against him on behalf of a monkey. He'll be remembered as the guy who is apparently such an atrocious photographer that the copyright status of one picture is enough to make or break his entire career, to the point that he's willing to go on a multi-year crusade to 'protect' it from the vile 'public domain'. He could have been remembered for any number of things, but given his obsessive fixation on the status of a single photograph I'm pretty sure he's just going to be remembered for behavior that would make even a drunk monkey look mature by comparison. In second place, we've got a quick comment from Roger Strong in response to Dianne Feinstein's continuing push for encryption backdoors, making proper use of the language that shows up in such rhetoric: "Responsible encryption" is encryption that is secure. They demand irresponsible encryption. For editor's choice on the insightful side, we've got two more comments about Feinstein and the encryption debate, starting with some thoughts from Ninja: It doesn't matter if the struggles FBI had were the fruition of their own stupidity or if the device is just impenetrable for now. They are not entitled to every single bit of evidence out there. They can't have access to conversations in person, destroyed documents and other unrecoverable evidence and yet they can pursue other evidence from other sources to secure a conviction in the courts. If one bad guy goes free, well, though luck, it's a small price to pay for the hundreds of millions of people that will be secure and will have their privacy respected. It's a very small price to pay for the security of journalists, whistleblowers and generally (generally!) awesome people that rely on this privacy and security on a daily basis to do their jobs. Besides, a criminal will not stop in a single crime and will eventually fail and leave breadcrumbs outside of encryption that can be used by competent law enforcement agents to build a decent case. Humans err. All the time. And again, if one exceptional criminal manages to stay under the radar once you weight this against the security and privacy of hundreds of millions the choice is obvious: preserve encryption as it is and if possible improve it. Next, we've got a reply to that very comment from Toom1275, who summed it up with a nice little phrase: It's called a search warrant, not a find warrant. Over on the funny side, we start out by returning to the monkey selfie story, where our first place winner was an anonymous commenter: Don't worry, Mike, the saga will end 70 years after the monkey has passed away. (Unless he has any relatives that will push for copyright extension.) In second place, it's Roger Strong again with a creative response to the shady anti-spyware developer that lost its lawsuit against a competitor that flagged its software as malicious: Dead Parrot Sketch, Enigma Software Edition Bleeping Computer: I wish to make a complaint! Enigma Software: We're closin' for lunch. Bleeping Computer: Never mind that, my lad. I wish to complain about this anti-spyware software what I purchased not half an hour ago from this very boutique. Enigma Software: Oh yes, uh, Spyhunter...What's, uh... What's wrong with it? Bleeping Computer: I'll tell you what's wrong with it, my lad. It's useless, that's what's wrong with it! Enigma Software: No, no, that's uh,... that's defamation. Bleeping Computer: Look, matey, a negative review is protected free speech, and this negative review is well earned. Enigma Software: No no it's not free speech, it's defamation! Remarkable software, Spyhunter, idn'it, ay? Beautiful UI! Bleeping Computer: The UI don't enter into it. It's stone useless. Enigma Software: It's a legitimate product! That's just your opinion, and it's defamation! Bleeping Computer: All right then, let's see what others think about it! (Runs Malwarebytes) (Malwarebyes declares it a threat and removes it.) Owner: That's tortious interference, that is! Bleeping Computer: No, it's an accurate assessment based on its uselessness, not to mention your other business practices! Enigma Software: It's felony interference with a business model! Bleeping Computer: It isn't. Your product is useless! Ineffectual! Pointless! Hopeless! Fruitless! Incapable! Incompetant! Inept! Inadequate! If you weren't charging people for automatic renewals in perpetuity, you'd go under! This product protects users like Ajit Pai protects consumers! Enigma Software: I never wanted to do this in the first place. I wanted to be... a DRM provider! For editor's choice on the funny side, we start out with one more nod to Roger Strong who, after we were called out on a typo rendering "apply" as "apple", went ahead and supplied a definition for our neologism: Verb. Meaning "Take bold action which makes no sense." The classic case: Apple buys Beats headphones for $3 billion. Then they immediately remove the headphone jack from the iPhone. Usage: "Americans wanted to "drain the swamp" so they appled Trump and his Wall Street and oil industry friends into the White House." And finally, we've got a nice and simple anonymous response to the idea that obscenity isn't protected speech: Yes it fucking is. That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago We've been talking a lot about copyright in these history posts recently, but this week in 2012 there was more news on the patent front. While patent troll TQP Development was launching a new crusade against hundreds of companies, the patent-aggressive medical device company Medtronic was getting a taste of its own medicine, and HTC and Apple were putting a patent dispute to rest. IBM's patent lawyer was making some vague arguments in defense of the patent system, while an excellet Wired article was laying out said system's many problems, and a Harvard research scientist was declaring sharing discoveries to be more efficient and honorable than patenting them. Ten Years Ago There was plenty of patent news this week in 2007 too, with a random patent over computer databases rearing its head to extract some cash from Google, and an astounding new case over a text messaging patent targeting 131 defendants. Patent hoarder Acacia was launching some new attacks while losing at least one lawsuit, and Nathan Myhrvold was raising $1-billion to buy even more patents to troll people with. Garmin and TomTom settled a patent dispute to concentrate on acquisition fights, an analyst firm succeeded in escaping an aggressive patent lawsuit over data collection, and we took a closer look at the sovereign immunity laws that were letting State Universities sue over patents without ever getting sued back. Fifteen Years Ago This week in 2002, Hollywood was launching its too-little-too-late VOD service Movielink, while music labels were struggling to catch up with digital distribution after dragging their heels for far too long (with EMI taking an extremely slight lead). While the legal battle over DVD copying software remained unresolved, the software was released anyway, right around the same time that Sony and Phillips teamed up to buy a DRM company. But probably our most interesting headline in retrospect was US Plans Huge Computer System To Spy On The Public. This, in 2002, referred to the first reports on DARPA's new Information Awareness Office, which was so controversial that Congress would de-fund it the following year. It would be another ten years before the Snowden leaks revealed that its key surveillance programs had simply been renamed and moved to different agencies, and continued to receive funding under classified annexes. Permalink | Comments | Email This Story

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Stories about copyright trolls issuing questionable settlement demands and lawsuits using laughably flimsy evidence with no regard to mitigating circumstances are somewhat common around here. The most egregious cases range from trolls sending threat letters to the elderly to flat out suing the innocent. This sort of thing is essentially inherent in a business model that closely apes an extortion ring, and here's another quintessential example of that. It all started when Venice PI sued a man for being part of a torrent swarm offering the movie Once Upon a Time in Venice. The judge in the case has put the proceedings on hold, noting rather harshly that Venice PI's evidence sucks, and that the man in question had severe enough dementia that his family says he couldn't even have operated a computer as described in the lawsuit and, at age 91, has died. The man’s wife informed a federal court in Seattle that he passed away recently, at the respectable age of 91. While age doesn’t prove innocence, the widow also mentioned that her husband suffered from dementia and was both mentally and physically incapable of operating a computer at the time of the alleged offense. These circumstances raised doubt with US District Court Judge Thomas Zilly, who brought them up in a recent order (citations omitted). “In two different cases, plaintiff sued the same, now deceased, defendant, namely Wilbur Miller. Mr. Miller’s widow submitted a declaration indicating that, for about five years prior to his death at the age of 91, Mr. Miller suffered from dementia and was both mentally and physically incapable of operating a computer." Oops. Still, the condition of the copyright troll's victim wasn't the topic which received Judy Zilly's harshest criticism. That distinction goes to the quality and quantity of evidence Venice PI produced in its lawsuit. The Judge notes that this evidence amounts essentially to nothing more than an IP address. He then goes on to suggest that any tracking of IP addresses that pointed to Mr. Miller being a torrent-y type of guy should have its accuracy immediately questioned. Beyond that, the judge indicated that Venice PI can't use that IP address to try to find, you know, actual evidence. Moreover, plaintiff may not, based solely on IP addresses, launch a fishing expedition aimed at coercing individuals into either admitting to copyright infringement or pointing a finger at family members, friends, tenants, or neighbors. To that end, lawyers for Venice PI are barred from having any contact with Miller's family or any other unnamed defendant in this case. In addition, Zilly is demanding any other evidence the plaintiff's can produce -- likely none --, as well as information on how IP addresses in bittorrent swarms might be spoofed. The judge goes on to say that if no further evidence can be presented, the claims will be dismissed with prejudice. It's simply great to see a court get this so correct in a copyright troll case. Too often trolls are allowed to skate by in presenting evidence that isn't evidence at all, with no ground given to the sort of mitigating testimony offered by Miller's widow. That Venice IP hasn't dismissed their case against the now-deceased man is an added stain on its trollish soul. Permalink | Comments | Email This Story

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In far too many trademark disputes, including those that actually reach the courthouse, there is far too little in the way of nuance when it comes to ruling. While I've long complained about a lack of focus on some of the higher-level concepts within trademark law, such as how the overall focus should be on public confusion and the simple fact that the category designations within the USPTO are far too broad, there is typically not enough recognition in the real minutia within the law as well. But that simply isn't the case in a ruling from the 9th Circuit Court of Appeals on a lawsuit filed by Fox Television for declaratory relief from threats issued by Empire Distribution, Inc., a record label, over trademark concerns and Fox's hit show Empire. Some background is in order. Empire, for those of you who don't know, is a show about a family-run record label in New York City called Empire Enterprises. Empire Distribution is a real-life label that has worked with names as big as T.I. and Snoop Dogg. At some point, Empire Distribution sent trademark threat notices to Fox, claiming that the name of the show was a trademark violation. In response, Fox filed for declaratory relief, which the district court granted. Empire Distribution appealed, resulting in the 9th Circuit Court of Appeals reviewing the decision and affirming it. But it's why the ruling was affirmed that is the star of this legal show, with the detailed court opinion laying out the nuance of the law. On Thursday, the 9th Circuit reviewed the district court's summary judgment decision, and in affirming Fox's victory, decided to apply the Rogers test, which was first developed by a sister appellate circuit in 1989 in response to Federico Fellini's 1986 film Ginger and Fred, which triggered a lawsuit by Ginger Rogers. The Rogers test, as it's called, resulted from that case and says that the title of a work is not infringing on trademark except if the title has no artistic relevance to the overall work or if it explicitly misleads the public as to the source of the work. For example, if someone were to create a television show called Michael Jordan's Cooking Hour, the public would think that the former Bulls star was involved with it. If he wasn't, the title of the show would infringe on any trademarks he might have for television shows (along with a host of other infringements, likely). But Empire, the Fox show, gets its name from the fictitious company it portrays, along with its setting in New York City, giving the title artistic relevance. It also does nothing to attempt to mislead the public into thinking that there is any involvement or reference to Empire Distribution. Therefore, Empire passes the Rogers test. Empire Distribution argued that part of the artistic relevance portion of the Rogers test includes a requirement for the new work to reference the older entity to be considered artistically relevant and protected. The court basically slaps that idea down and suggests that Empire Distribution's legal team doesn't understand the Rogers test at all. This is how a work fails the first prong of the Rogers test: by bearing a title which has no artistic relevance to the work. A title may have artistic relevance by linking the work to another mark, as with 'Barbie Girl,' or it may have artistic relevance by supporting the themes and geographic setting of the work, as with Empire. Reference to another work may be a component of artistic relevance, but it is not a prerequisite. Accordingly, the relevance of the word 'empire' to Fox’s expressive work is sufficient to satisfy the first prong of the Rogers test. The court goes on to say that Empire passes the Rogers test on the second prong as neither the show nor its title makes any claims or references to Empire Distribution, and is therefore doing nothing that is "explicitly misleading." For us trademark nerds, it's a great ruling with a wonderful explanation of some nuance in trademark law and precedent. For Empire Distribution, who never should have made such silly threats, it's simply a judicial beatdown. Permalink | Comments | Email This Story

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Earlier this year, journalist Ashley Feinberg outed then-FBI Director James Comey's secret Twitter account, using nothing more than the "harmless" metadata people like James Comey have said no one needs to worry about. The secret account was sniffed out through something the Intelligence Community likes to call "contact chaining." The path ran through Comey's children's Instagram accounts and one conspicuous follower of Comey's previously-secret account: Lawfare writer, surveillance apologist, and personal friend of Comey's, Benjamin Wittes. For some reason, months after the fact, Wittes has decided the route to unmasking Comey's Twitter account was more like stalking than journalism. Wittes objected to the "use" of Comey's children -- the seemingly-unrelated contacts who Feinberg chained together to reach her conclusion. This was weird because, as Marcy Wheeler points out, Comey seemed to be impressed by the journalist's work. Even weirder is the fact Wittes (and former IC attorney/Lawfare editor Susan Hennessey) didn't see the obvious parallels between Feinberg's detective work and the FBI's own use of metadata, contact chaining, and working its way towards targets through vast amounts of unrelated data. Not only did he say he wasn't mad and compliment her work, but he posted the link to FBI jobs. I'd say Jim Comey sees a similarity in what Feinberg did. I'm all in favor of protecting the accounts of children from such contact chaining — and am really not a big fan of contact chaining, generally. But those who, like Comey and Wittes and Hennessey and Tait, have championed a system that endorses at least two hop chaining irrespective of who gets hopped, not to mention those who've tolerated the collection on family members in even more targeted surveillance, I'm not all that interested in complaints about the privacy of a 22-year old son. Or rather, I point to it as yet another example of surveillance boosters not understanding what the policies they embrace actually look like in practice. Which is precisely why this “doxing” was so newsworthy. Wheeler goes into more detail on the FBI's use of contact chaining and metadata and discusses Comey's own approval of these practices during his tenure. This may explain why Comey was more impressed than angry when he was outed. As for the complaints about "outing" Comey's adult children, Wheeler points out Comey himself has thrust them into the public eye on more than one occasion, starting back when they were still young teenagers. But beyond this there's the hypocritical nature of Wittes' attack on the journalist. Surveillance state supporters love surveillance -- except when the apparatus is controlled by people they don't like or aimed at people they do. These are ridiculous arguments to be making, especially when you actively support state-sponsored "stalking." Permalink | Comments | Email This Story

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A Texas sheriff did some pandering to his base this week, ultimately making a fool of himself. On Monday, Sheriff Troy Nehls posted the following to Facebook: If you can't see it, it's a photo of a truck with a decal attached to the rear window. The decal reads: Fuck Trump and fuck you for voting for him Here's what Sheriff Nehls wrote: I have received numerous calls regarding the offensive display on this truck as it is often seen along FM 369. If you know who owns this truck or it is yours, we would like to discuss it with you. Our Prosecutor informs us she would accept Disorderly Conduct charges regarding it, but I feel we could come to an agreement regarding a modification of it. This is stupid on every single level. First off, as former police officer and current attorney Greg Prickett points out in his post at Simple Justice, there's no way those charges would stick. Sheriff, that's political speech, and it's protected speech. You don't get to silence it because you don't like it, or even because it offends you, the District Attorney, or anyone else. The Disorderly Conduct statute in Texas is very clear on this. You can charge someone with Disorderly Conduct if "the language by its very utterance tends to incite an immediate breach of the peace," or if the "display tends to incite an immediate breach of the peace…" That hasn't happened here. If Fonseca and her family have been driving around for almost a year and there have been no fights, no disturbances, no riots or so forth, you are not going to be able to prove that there was a danger of an "immediate breach of the peace." Instead, Nehls may have rained down fire on his own idiotic head by pursuing it. What you may have, instead, is another crime, a much more serious crime, being threatened by Sheriff Nehls. If Nehls goes through with his threat, it could very well meet the elements of the offense of Official Oppression, which states: (a) A public servant acting under color of his office or employment commits an offense if he: (1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful; (2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful… Now, let's get to the rest of the moronic post. It is highly doubtful the Sheriff has "received numerous calls" about a window decal. Even given the sorry state of Americans' understanding of the First Amendment, most people would realize a sweary decal is not a law enforcement issue. More likely, the Sheriff or one of his deputies spotted it and took a photo or, at best, a concerned citizen sent it to the apparently pro-Trump Sheriff in hopes that he would abuse the law to shut down protected speech. (If so, well played, citizen. Everyone loves an American who believes in less rights for people they don't agree with.) Next, the "discussion" proposed by the Sheriff is a bait-and-switch. Unlike most bait-and-switch purveyors, Sheriff Nehls is too excited about prosecution to allow the bait to do its work. By pitching it as a voluntary interaction, Nehls covers his ass on official oppression. But he immediately uncovers it by referring to a prosecutor just dying to punish protected expression with a bogus disorderly conduct charge. That brings us to perhaps the stupidest part of Nehls' post. Nehls states a prosecutor is willing to move forward with charges. That appears to be a lie. KHOU 11 News also reached out to the Fort Bend County District Attorney. He says the Sheriff never consulted him before posting the suggestion the driver may be charged with disorderly conduct. He made it clear his office would not accept charges against that driver simply because of the profanity and message on the truck. It's unclear who Nehls is referring to. This prosecutor is a he (Nehl's post refers to a "she"), and he apparently would be in charge of prosecuting cases brought to him by the Sheriff. I suppose he could be referring to one of the other prosecutors in the DA's office, but all cases would presumably be signed off by the DA himself before moving forward. If one of them offered to help the Sheriff fight his battle against the First Amendment, they would be aiding and abetting official oppression. Having outed himself as a law enforcement official willing to oppress speech under the color of law, Nehls gracelessly deleted his Facebook post. He then went on to issue a statement to the effect of "I just wanted to talk to this person about their bumper sticker… but with the dangling threat of prosecution as a backdrop." Nehls addressed the post in a press conference Wednesday afternoon. "People have called and are offended by the language," said Nehls. "I simply want to talk to the owner and say 'Look the last thing we need to do is have anyone have any confrontation over the language on your truck.'" But this can't possibly be true. If all Nehls wanted to do is talk, he had plenty of time to do so. And he could have done it without dragging the vehicle owners into his social media debacle. But it appears he'd rather grandstand on Facebook than do actual police work and, you know, track down the owners of the vehicle. Even with the head start of license plate database access and its favored route of travel, the local news team managed to be the first people to actually talk to the truck owners. KHOU 11 News tracked down the owners of the truck, Karen and Mike Fonseca. They are stunned and angry that Nehls would start this debate on Facebook instead of calling them personally. They say they're entitled to their free speech. "There's no law against freedom of speech, nothing in the law book here in Texas, I've been stopped numerous times, but they can't write me a ticket," said Karen Fonseca. The truck owners are more right in two sentences than Nehls was in a Facebook post and ensuing press conference. They are definitely right to be angry about Nehls' casual abuse of office that turned them into targets for hate from like-minded fans of free speech curtailment. Above all else, Sheriff Nehls is a disingenous asshole. The sheriff said he wants to avoid a situation where somebody could take offense to the sign on the truck, possibly leading to a confrontation. "I don't want to see anything happen to anyone," Nehls said. "With people's ... mindset today, that's the last thing we need, a breach of the peace." Then why the fuck would you post a photo of the truck and decal to Facebook? You're just begging for a "breach of the peace." You've turned the owners into a target for pro-Trump partisans and people who like to yell at other people for public swearing. You pulled some petty bullshit under the color of law and have the audacity to claim your foremost concern is the truck owners' safety. If this is what the public gets to see of your mindset and retaliatory nature, one can only imagine what goes on behind the scenes. Nehls says he wants to "come to an agreement regarding a modification" to the anti-Trump decal. I can suggest one, but I doubt the Sheriff will like it. And, of course, as I put the finishing touches on this post comes the news that Fonseca has been arrested -- though for an outstanding warrant. Permalink | Comments | Email This Story

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There are two big WTFs in this story. First, the Defense Departments Central Command (Centcom) was collecting tons of data on social media posts... and then the bigger one, they somehow left all the data they collected open on an Amazon AWS server. This was discovered -- as so many examples of careless data exposure on Amazon servers -- by Chris Vickery and UpGuard, who have their own post about the mess. You may recall Vickery from such previous stories as when the GOP left personal data on 200 million voters on an open Amazon server. Or when Verizon left private data available on millions of customers. Or when a terrorist watch list was left (you guessed it) on an open server. Or when he discovered that Hollywood studios were leaving their own screeners available on an open server. In short, this is what Vickery seems particularly good at: finding large organizations leaving sensitive data exposed on a server. You would think (wouldn't you?) that Centcom would be better about these things than, say, Verizon or the GOP or Hollywood. But, nope. "[It's] a pretty serious leak when you're talking about intelligence information being stored in an Amazon cloud service and not properly safeguarded," said Timothy Edgar, a former White House official in the Obama administration and former U.S. intelligence official. Centcom's response is... sketchy. It uses the important term "unauthorized access," which suggests that it may be pushing for CFAA charges against Vickery/Upguard, since "unauthorized access" is a key part of the CFAA: "We determined that the data was accessed via unauthorized means by employing methods to circumvent security protocols," said Maj. Josh Jacques, a spokesperson for U.S. Central Command. "Once alerted to the unauthorized access, Centcom implemented additional security measures to prevent unauthorized access." But if it was truly left open, then the access was not "unauthorized." Indeed, it appears that Centcom went for convenience over security by making its Amazon S3 bucket open for access, and hoping obscurity would hide it. Amazon servers where data is stored, called S3 buckets, are private by default. Private means only authorized users can access them. For one to be made more widely accessible, someone would have to configure it to be available to all Amazon Web Services users, but users would need to know or find the name of the bucket in order to access it. By searching specific keywords, Vickery identifies information that companies and organizations inadvertently expose. In this case, he looked for buckets containing the word "com." Three S3 buckets were configured to allow anyone with an Amazon Web Services account to access them. They were labeled "centcom-backup," "centcom-archive" and "pacom-archive," Vickery said. As for just what Centcom was doing here -- it does appear that it was publicly available social media content, so that's less of a direct concern, but it still does make you wonder why Centcom was storing all of this social media info. There are also, of course, related concerns about the US Defense Department conducting surveillance on Americans. This is from Upguard's post on the matter (linked above): The data exposed in one of the three buckets is estimated to contain at least 1.8 billion posts of scraped internet content over the past 8 years, including content captured from news sites, comment sections, web forums, and social media sites like Facebook, featuring multiple languages and originating from countries around the world. Among those are many apparently benign public internet and social media posts by Americans, collected in an apparent Pentagon intelligence-gathering operation, raising serious questions of privacy and civil liberties. While a cursory examination of the data reveals loose correlations of some of the scraped data to regional US security concerns, such as with posts concerning Iraqi and Pakistani politics, the apparently benign nature of the vast number of captured global posts, as well as the origination of many of them from within the US, raises serious concerns about the extent and legality of known Pentagon surveillance against US citizens. In addition, it remains unclear why and for what reasons the data was accumulated, presenting the overwhelming likelihood that the majority of posts captured originate from law-abiding civilians across the world. I know that the US government still has this "collect it all" mentality, but as we've discussed over and over again, adding more hay to the haystack doesn't make it easier to find the needles. Permalink | Comments | Email This Story

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Nine months after the DOJ's Facebook search warrants targeting Trump inauguration protesters were approved, the DC District court has finally issued a ruling restricting how much the government can actually obtain. The original warrants were broad, seeking communications from every Facebook user who had interacted with DisruptJ20's Facebook page. If these hadn't been challenged, the government would have had access to the entire contents of more than 6,000 Facebook users' accounts. The warrant also came with an indefinite gag order, something the DOJ dropped on the eve of oral arguments, perhaps sensing it wouldn't be allowed to keep it. The government claimed evidence of criminal activity -- specifically violation of DC's rioting laws -- would be found in these accounts. Once the gag order was lifted, the warrants were challenged directly by some of the targets and Facebook itself. This has led to a few concessions by the DOJ, but it's still seeking a whole lot of communications presumably unrelated to the underlying charges. The district court has modified the warrants via a court order, paring back the government's demands even further. Paul Levy has an excellent, thorough post discussing the pros and cons of the modifications at the Public Citizen blog (Public Citizen moved to intervene, but apparently its motion has been ignored) -- one that is definitely worth reading to understand how much the government is still going to be able to obtain, despite months of warrant trimming. On the plus side, the ruling [PDF] protects the identities of users who interacted with the DisruptJ20 Facebook page. Perhaps impelled by the ACLU’s excellent briefing of the issue, his opinion contains an extended discussion of the two-step process, and of the importance of adapting that process to constrain searches that might otherwise intrude too deeply in protected political expression and create a chilling effect on future online political expression. Even more clearly than he did in his DreamHost rulings, Judge Morin states squarely that the government has never shown probable cause to believe that communications of anonymous third parties with the accounts themselves contain evidence of criminal activity charged in the indictment. Consequently, the third parties’ identifying information was entitled to be protected from disclosure pursuant to the order enforcing the search warrant. If this is more than a DOJ fishing expedition, the government will need to move fast to get users stripped of their anonymity. Prosecutors are expecting to go to trial sometime in November, and Judge Morin won't approve the release of identifying information unless the government can hand over compelling reasons to de-anonymize particular Facebook users. As for Facebook, it claims manual redactions of the requested communications will take at least three weeks, so the government may have to talk a judge into delaying the trial or possibly face having to dismiss some charges. According to Levy, that's the best part of the opinion, one that will probably be cited by others challenging overbroad search warrants. The rest of it is less spectacular, with some of it downright concerning. While the order protects the identities of users who interacted with the page, it will not protect their communications. The government may not have full access to private messages, but it will apparently get a copy of anything matching certain keywords. The users targeted directly by warrants (as opposed to a targeted Facebook page) will see even more of their private communications exposed. This is troubling because much of what was discussed will likely be the sort of speech the government is supposed to protect. After all, DisruptJ20 was a protest group. Some protests may turn into riots, but it's unlikely the genesis of those riots are contained in Facebook private messages. Worse, as Levy points out, there's still a whiff of fishing expedition in the air. Without clearer justifications for the search demands, the government appears to be engaged in the chilling of political speech. Even assuming that there is sound reason to believe that some material on any of these pages relates to the riot, the DisruptJ20 page as well as the individual pages will have a great deal of political expression unrelated to the riot. A colloquy between Judge Morin and the Assistant U.S. Attorney during the hearing suggested that photographs of riot activity may have appeared on the pages at one time, and that the government hopes its search warrant can provide access to photos that would help identify participants, and lead to information about the photographers who can be subpoenaed to authenticate them. Given the continued secrecy of the probable cause affidavits, we cannot be sure what other bases the government may have given for the search of these three accounts. So, the government may still be allowed to fish, but it will have to use a shorter line. But overall, it appears the government needs to expect to have a lot more of its warrants challenged if it appears to be targeting a whole bunch of people and their protected speech. Update: Public Citizen has filed a motion for reconsideration [PDF], asking the court to take another look at one of its questionable search constraints. The filing points out the court appears to contradict itself in its ruling, possibly giving the government full access to communications of innocent parties, constrained only by redaction of indentifying information. Doe l, Doe 2, and Doe 3 move the Court to clarify and, if need be, to modify in one narrow respect, its final order regarding the manner in which the search warrants to Facebook seeking data from the accounts of Lacy MacAuley and Legba Carrefour will be executed. There is an ambiguity in the language on page 15 of the Court's order with respect to the redactions that Facebook is to make from the data in MacAuley and Carrefour accounts before the information is turned over to the government for "front to back" review. One reading of the language is that any content posted by innocent third parties is to be redacted; another is that only identifying information is to be redacted from such content, after which that content, like the content posted by MacAuley and Carrefour, is to be subject to "front to back" review. If the latter is the proper interpretation, then the Does ask for reconsideration, based on the contention that a factual distinction drawn in the Court's opinion about how Facebook accounts work is incorrect, and not supported by the record. The filing also asks the court to reconsider its denial of Public Citizen's motion to intervene. As is explained in Levy's blog post, Judge Morin's order in the Dreamhost case (related to the DisruptJ20 website and a warrant that targeted more than a million site visitors) greatly benefited from expert analysis and other contributions from intervenors. The same sort of expertise would further refine the restraints imposed on the government's search efforts as well as give the three parties challenging the warrant more legal knowledge to work with. Permalink | Comments | Email This Story

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In the wake of the Trump administration's decision to gut modest FCC consumer privacy protections and net neutrality rules, telecom lobbyists are working overtime trying to stop states from filling the void. In the wake of the FCC's wholesale dismantling of consumer protections, states like California have tried to pass their own laws protecting your broadband privacy rights online, only to find the efforts scuttled by AT&T, Verizon and Comcast lobbyists, who've been more than happy to spread all manner of disinformation as to what the rules did or didn't do. Worried that states might actually stand up for consumers in the wake of the looming attack on net neutrality, both Verizon and Comcast have been lobbying the FCC to ban states from protecting your privacy and net neutrality. The two companies were also joined this week by the wireless industry's biggest lobbying and policy organization, the CTIA. In an ex parte filing (pdf) with the FCC, wireless carriers whine about how unfair it is that states attempted to protect user privacy after the federal government made it clear it had no such interest: "Earlier this year, legislators in various states attempted to countermand Congressional action on broadband privacy regulations. When states and localities are provided a wide berth to test the boundaries of what is or is not consistent with Congressional objectives, the Commission and the courts are forced to evaluate regulations case-by-case, with broadband providers subject to a patchwork of mandates at issue during the review." Like Comcast and Verizon, the wireless industry would have you forget that states wouldn't be running to create discordant privacy protections if these same lobbyists hadn't just successfully killed modest federal rules. This is a problem caused entirely by lobbyists for some of the least competitive companies in America. Said lobbyists would also have you ignore the fact that when California presented a fairly modest EFF approved replacement that could be used as a template for other states -- they made up a whole bunch of bullshit to scuttle the effort. Most importantly these folks would have you ignore that they're perfectly fine with states writing shitty, protectionist regulations designed solely to protect uncompetitive duopolists, but state legislation that actually attempts to protect consumers is just a bridge too far. When critics suggest that maybe giant ISPs shouldn't get to write awful state laws, said ISPs will often lament an "attack on states rights." But here you'll notice the hypocrisy in having no problem dictating what local states can and can't do. Further in, the wireless industry makes it clear it's worried that states will also try to protect net neutrality after lobbyists and the FCC vote to gut net neutrality rules on December 15: "The Commission therefore should preempt any state or local broadband-specific regulation, irrespective of whether the state or locality claims that its regulation promotes or supplements federal goals. Thus, for example, state “network neutrality” regulations addressing the treatment of traffic on the network would be preempted, as would state broadband-specific privacy requirements." The end goal is virtually no oversight for an industry that has proven repeatedly that it's incapable of regulating itself within the boundaries of good taste. From AT&T charging broadband users hundreds of dollars annually just to opt out of snoopvertising, to Verizon covertly modifying user packets to track users around the internet, these companies have repeatedly shown that there's no end to the privacy-eroding idea they'd love to implement. Without any meaningful guard rails on the state or federal level, and only modest market pressure to behave due to limited competition, you can expect this kind of behavior to get immeasurably worse. Permalink | Comments | Email This Story

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The Senate Intelligence Committee has released its report [PDF] on its Section 702 reauthorization plan. Rather than adopt any serious reforms -- like those proposed by Sen. Ron Wyden -- the SIC plans to move ahead with its non-reform bill, one that's actually weaker than the watered-down offering from the House. The bill remains pretty much as bad as it was when it was first introduced. It still allows the NSA to start up its "about" collection again, although it does require approval from the FISA court first and contains a safety valve for introduction of legislation forbidding this collection. (I guess Wyden's reform bill doesn't count.) Other than that, it's still just bad news, especially on the Fourth Amendment front, as it allows both the collection of wholly domestic communications and backdoor searches of NSA data stores. The upshot of the report is this: eleven senators are perfectly fine with domestic surveillance. As the bill report lays out, Senators Burr, Risch, Rubio, Collins, Blunt, Lankford, Cotton, Cornyn, Warner, King, and Manchin are all cool using a foreign surveillance program to spy on their constituents, especially given that Burr has hidden precisely the impact of that spying in this report. Any bets on whether they might have voted differently if we all got to know what kind of spying on us this bill authorized. That, of course, is only eleven senators who are cool with treating their constituents (or at least those using location obscuring techniques) like foreigners. There are two more you can add to this list: Sens. Feinstein and Harris. Although they voted against allowing the NSA to collect wholly domestic communications, they did vote against Wyden's amendment, which would have limited the use of domestic communications by US government agencies to only a few national security-related crimes. Their vote against this means Feinstein and Harris are no better than the other eleven when it comes to domestic use of supposedly foreign-facing dragnets if there's any evidence of domestic criminal activity caught in the net. That includes a longer list of crimes which really aren't the sort of thing we should be using dragnets to investigate: "serious bodily injury," CFAA violations and human trafficking -- the latter of which could be nothing more than US citizens helping stranded foreigners. On top of that, there's no judicial review involved when the government makes a determination that something "affects, involves or is related to" national security. As Marcy Wheeler has pointed out, this allows the DOJ to decide what it can or can't collect on US persons using NSA surveillance programs. Attorney General Jeff Sessions could decide tomorrow that it can collect the Tor traffic of BLM or BDS activists, and no judge can rule that’s an inappropriate use of a foreign intelligence program. So, the Senate version is way worse than the House version, which wasn't all that great to begin with. The fact that it's now mid-November and these bills are now just taking the next step towards a floor vote pretty much guarantees these non-reform efforts will be stapled to the backend of a must pass appropriations bill, where they're less likely to rejected on their own merits. Permalink | Comments | Email This Story

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We already knew Jeff Sessions was a throwback. The new head of the DOJ rolled back civil rights investigations by the agency while calling for harsher penalties and longer jail terms for drug-related crimes, while re-opening the door for asset forfeiture abuse with his rollback of Obama-era policy changes. But it's more than just the new old-school DOJ. The FBI is just as regressive. Under its new DOJ leadership, the FBI (inadvertently) published some speculative Blue Lives Matter fanfic [PDF] -- an "Intelligence Assessment" entitled "Black Identity Extremists Likely Motivated to Target Police Officers." There's no hedging in the title, despite what the word "likely" usually insinuates. According to the FBI, this means there's an 80-95% chance it believes its own spin. Here's the opening sentence: The FBI assesses it is very likely Black Identity Extremist (BIE) perceptions of police brutality against African Americans spurred an increase in premeditated, retaliatory lethal violence against law enforcement and will very likely serve as justification for such violence. And here's what the term "very likely" means when the FBI uses it: Beyond that, the FBI says this: The FBI has high confidence in these assessments… And here's how the FBI defines "high confidence." High confidence generally indicates the FBI’s judgments are based on high quality information from multiple sources. High confidence in a judgment does not imply the assessment is a fact or a certainty; such judgments might be wrong. While additional reporting and information sources may change analytical judgments, such changes are most likely to be refinements and not substantial in nature. What's in this open-and-shut report? What key elements lead the FBI to believe "BIEs" will be killing cops in the future? Well, it appears to be nothing more than a recounting of recent cop killings, coupled with anecdotal evidence, like the expression of anti-white sentiment in social media posts. Beyond that, there's little connecting those who have killed cops with the ethereal FBI BIE ideal. There's certainly no organization behind the killings -- only a few common factors. And those factors -- if the FBI is allowed to continue to treat "BIE" as a threat to police officers -- will do little to discourage violence against police officers. What it will do is allow law enforcement to engage in racial profiling and to overreact to social media rants by angry black men. And it will allow the FBI to turn into the same FBI that targeted Martin Luther King Jr. and other civil rights activists during the 1960s. In fact, it almost acknowledges as much in the report. BIEs have historically justified and perpetrated violence against law enforcement, which they perceived as representative of the institutionalized oppression of African Americans, but had not targeted law enforcement with premeditated violence for the nearly two decades leading up to the lethal incidents observed beginning in 2014. BIE violence peaked in the 1960s and 1970s in response to changing socioeconomic attitudes and treatment of blacks during the Civil Rights Movement. The composers of this report may have a lot of confidence in their assumptions, but no one else seems to. Daryl Johnson, a former Department of Homeland Security intelligence agent, when asked by Foreign Policy in October why the F.B.I. would create the term “B.I.E.,” said, “I have no idea” and “I’m at a loss.” Michael German, a former F.B.I. agent and fellow with the Brennan Center for Justice’s liberty and national security program, said the “Black Identity Extremists” label simply represents an F.B.I. effort to define a movement where none exists. “Basically, it’s black people who scare them,” he said. “Could you name an African-American organization that has committed violence against police officers?” Representative Karen Bass asked Attorney General Jeff Sessions at Tuesday’s hearing. “Can you name one today that has targeted police officers in a violent manner?” It’s no surprise that he could not. Mr. Sessions, who confessed that he had not read the report, said he would need to “confirm” and would reply in writing at a later time. The F.B.I. itself admits in the report, that, even by its own definition, “B.I.E. violence has been rare over the past 20 years.” If the report is acted on, it will be the 1960s all over again. Although it’s unclear what actions the F.B.I. will take as a result of the report, the conclusions pave the way for it to gather data on, monitor and deploy informants to keep tabs on individuals and groups it believes to be B.I.E.s. This could chill and criminalize a wide array of nonviolent activism in ways that have terrifying echoes its infamous Cointelpro program, which investigated and intimidated black civil rights groups and leaders, including Marcus Garvey and the Rev. Dr. Martin Luther King Jr. Under this program, F.B.I. agents concocted a false internal narrative connecting Dr. King to foreign enemies, allowing agents to justify threatening to publicize his private life and encouraging him to commit suicide. This is a reminder that while the “Black Identity Extremist” designation is new, the strategy of using a vague definition to justify broad law enforcement action is not. This is what the report looks like from the outside. It's unclear if those inside the agency feel the same way. The leaked report confirms many people's suspicions about law enforcement agencies: they view minorities as threats and will concoct narratives to support these views. There's no evidence any sort of BIE organization exists, much less the existence of a concerted effort to inflict violence on police officers. But this report is a gift to every police officer and FBI agent who really wants to believe African Americans are out to get them. Given the administration's unqualified support for law enforcement, coupled with the Commander in Chief's off-the-cuff encouragement of violence, this report is basically an invitation to start policing like it's 1960, rather than 2017. 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We've long noted how the painful lack of security and privacy standards in the internet of (broken) things is also very well-represented in the world of connected toys. Like IOT vendors, toymakers were so eager to make money, they left even basic privacy and security standards stranded in the rear view mirror as they rush to connect everything to the internet. As a result, we've seen repeated instances where your kids' conversations and interests are being hoovered up without consent, with the data frequently left unencrypted and openly accessible in the cloud. With Luddites everywhere failing to realize that modern Barbie needs a better firewall, this is increasingly becoming a bigger problem. The latest case in point: new research by Which? and the German consumer group Stiftung Warentest found yet more flaws in Bluetooth and wifi-enabled toys that allow a total stranger to listen in on or chat up your toddler: "The investigation found that four out of seven of the tested toys could be used to communicate with the children playing with them. Security failures were discovered in the Furby Connect, i-Que Intelligent Robot, Toy-Fi Teddy and CloudPets. With each of these toys, the Bluetooth connection had not been secured, meaning the researcher did not need a password, pin or any other authentication to gain access. Little technical knowhow was needed to hack into the toys to start sharing messages with a child. Again, the problem isn't just bad security, it's the total lack of security: "With the i-Que Intelligent Robot, available from Argos and Hamleys, the investigation discovered that anyone could download the app, find an i-Que within their Bluetooth range and start using the robot’s voice by typing into a text field. The toy is made by Genesis, which also manufactures the My Friend Cayla doll, recently banned in Germany owing to security and hacking concerns. Both toys are distributed in the UK by Vivid." Genesis was already facing a lawsuit here in the States accusing it of violating COPPA (the Childrens’ Online Privacy Protection Act of 1998) by failing to adequately inform parents' that their kids conversations and personal data collected by the toys are being shipped off to servers and third-party companies. Said lawsuit also points out how the privacy policies governing the collection of kids' data aren't clear, aren't prominently displayed, and often change without notice. Overseas the reaction has been notably more hysterical, with German regulators urging parents to destroy these not-so-smart dolls or pay massive fines. As is usually the case, the companies responsible for this total privacy and security failure like to portray these flaws as limited in scope and unlikely to be exploited: "The British Toy and Hobby Association, of which Vivid and Hasbro are members, said: “The industry takes its responsibilities incredibly seriously when making products for children, with BTHA members investing heavily in everything from toy safety to data privacy and online security. "We are aware of the Which? report, but understand the circumstances in which these investigations have taken place rely on a perfect set of circumstances and manipulation of the toys and the software that make the outcome highly unlikely in reality." Again though, this is often not just vulnerabilities we're talking about, but no security or privacy standards whatsoever. The idea that this isn't being exploited, however infrequent, seems unlikely -- especially as the media highlights more and more similar flaws. And again, with the internet of broken things introducing millions of new attack vectors into homes and businesses worldwide every day, the impact from this sort of privacy and security apathy will be cumulative. Permalink | Comments | Email This Story

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I suppose because too many of my fellow citizens in America have devolved into hyper-partisan rage-beacons, I have to issue the following stupid caveat that I shouldn't have to issue at all: this post is not a commentary on Trump's border wall policy. Great. I'm sure that will keep our comments free and clear of anyone insisting otherwise. With that being said, a common topic we discuss here is how one of the chief benefits of the internet is how it has removed gatekeepers that have long stood in the way of new businesses, or have governed how established businesses do their business. Typically, we have focused on the former, detailing how the internet has allowed for new players in everything from the entertainment industry to products that would have previously existed solely at the pleasure of brick and mortar retail stores. But this post is about the latter. You may have heard about the viral video making the rounds from the folks behind the hit card game Cards Against Humanity. If you haven't, here it is. I have to admit, the video is really well done. If nothing else, it serves to remind us that content is advertising and advertising is content. But it's also true that a campaign that essentially trolls the sitting American President by buying a piece of land where his proposed border wall is going to go and then vowing to defend that land legally for as long as possible is controversial to say the least. Some not inconsequential percentage of Americans -- and, likely, our readers -- think that the border wall is good policy. Some other percentage do not. Whatever you might think, it should be clear that this campaign is likely to piss off some decent chunk of the company's potential customer base. Why the company wants to do this is a valid question, but I'd like to point out why they can do this. Given the nature of the game, the company has no problem being a bit brash, and because they are self-owned, and don't rely on big box stores to push their product, the company can get away with a bit more. That's putting it mildly. It's nearly impossible to envision the company taking so staunch a political stance as this were it forced to rely on traditional retail stores, which would likewise feel backlash from supporters of the border wall. You likely have already imagined how many calls there would be on retailers to drop the product if this happened, except it's more likely that the folks behind Cards Against Humanity never would have done this in the first place, save for their ability to sell directly to consumers via the internet. Political stances are also not a new habit for the company. It's even addressed on the company's FAQ page on its website. On its FAQ page for the new expansion, one question asks: I don't like that you're getting political. Why don't you just stick to card games? Their answer? "Why don’t you stick to seeing how many Hot Wheels cars you can fit up your asshole?" My kind of people, obviously. Again, whatever your political leanings, it's worth recognizing how any company is now more free to engage in controversial behavior like this simply because the gatekeepers are gone and the internet reigns. Permalink | Comments | Email This Story

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By now it's become something of a pattern over the past few months, after many of the recent accusations come out about sexual harassment, abuse (or worse), lawyers representing the powerful men accused of such horrible acts threaten or promise to sue, often on incredibly flimsy reasons. In most cases, no such lawsuits will ever be filed. This is, in part, because the accusers know they have no case and in part because they know that if the case gets that far, going through discovery is likely to backfire big time. But, of course, for decades people have (often falsely) believed that in place of a real basis for making a legal threat, pure bluster will suffice. The bluster in these letters is often impressive, but we have a new entrant that I think may quickly shoot to the top of the list. Roy Moore, of course, was the former Chief Justice of the Alabama Supreme Court, which would lead you to believe he knows a lot of good lawyers. And, yet, somehow, he ended up with Trenton Garmon. Garmon made some news earlier this week when he went on CNN with Don Lemon and called him "Don Lemon Squeezy Keep It Easy" But then he followed it up by sending one of the most profoundly ridiculous threat letters we've ever seen to the Alabama Media Group, the publisher of al.com, which has been reporting on Moore. You can click the link, or see it embedded below. It's fairly astounding. Beyond the poor grammar and the typos, it makes no sense. It starts out by basically arguing that AL.com's reporting was "careless" (a bit ironic, given the mistakes in the letter) but (as is typical of threat letters of this nature) without giving many specifics. It does claim that the reporting on Moore signing a high school yearbook was untrue, but does so in a weird way: Your client as an outlet is carelessly and perhaps maliciously reporting that my client, Judge Roy S. Moore, noted and signed a Yearbook of an accuser as a "DA" and in a manner which experts, to include our own, have confirmed is not consistent with his handwriting (To wit: structure, strokes, slant, base alignment, etc.) and does not comport to his typical vernacular. And then it makes bizarre and nonsensical arguments about spoliation, which isn't exactly relevant here: Please also note that per Alabama law there is a Third Party Tort for Spoliation. Thus, even if your client is not a held to have defamed or otherwise worked civil damages upon our clients, your client may remain responsible in a Court of law for damages caused by failure to preserve evidence. This is often times referred to as "Adversse Interference." "Worked civil damages upon our clients?" Huh? And then the letter gets into defamation, first defining defamation (poorly) and then accuses the site of having "inteionally refused to advance the truth regarding our clients." As to what, specifically, was defamatory... well, Garmon mentions that a report claimed five women have accused Moore, while Garmon says it was just two. No really. And who starts a paragraph (let alone a sentence) with the word "meaning"? Meaning your client has used terms in reports maliciously or carelessly which has falsely portrayed our clients. Specifically your client's reports have indicated there are five [5] women accusing Chief Justice Roy Moore of sexual misconduct when in fact only two [2] women have made accusations of sexual misconduct. And both of these women have made false statements which your client has yet to publish. The other ladies which were rounded up in the witch hunt merely allege they perceived him to have made advances, but do not accuse him of any sexual misconduct. When your claim of defamation is based on the fact that some of the women only accused your client of being a creep, rather than a full-on abuser, you're not in a very strong legal position. Also, is Garmon really suggesting that Al.com can be accused of defamation for not printing false statements? Huh? Legal Twitter has been having a blast in response to this, though my favorite has been the pseudonymous legal blogger Tweeter @nycsouthpaw, who marked up the letter: pls find my comments on Moore's lawyer's letter attached pic.twitter.com/Ohfh80QYuh — southpaw (@nycsouthpaw) November 15, 2017 Popehat won't even touch it: People are suggesting I write about Roy Moore's lawyer's threat letter. Write what? How would I begin? Would you footnote a sunset over the water? Would you airbrush a rose? That letter is the Mona Lisa of unselfconscious imbecility. — Sign Popehat's Yearbook (@Popehat) November 15, 2017 Some on Twitter pointed out that Garmon had his law license suspended in the past. He had his law license suspended in 2014 for being an ambulance-chasing liar trying to take advantage of the the family of a dead child. From "The Alabama Lawyer" Sept/14.. https://t.co/JozgTjprpD pic.twitter.com/jGyIAHV19N — Brenda Of The North (@BrendaJeanCDN) November 15, 2017 Incredibly, Judge Roy Moore voted to uphold Garmon's disbarment, and then just a few years later decided to bring him on as his lawyer? 7. Garmon appealed his disbarment to the Alabama Supreme Court. That is when then-Chief Justice Roy Moore voted to uphold Garmon's suspension Even Roy Moore agreed his own lawyer's hearse chasing and religious lies to grieving parents was unethical.https://t.co/94WdL2e5NC pic.twitter.com/m31D6QMfQn — Grant Stern (@grantstern) November 16, 2017 Since the letter came out, Garmon has also appeared on MSNBC where he started making completely nonsensical comments about one of the hosts he was talking to, Ali Velshi, implying that because Velshi was born in Kenya (though raised in Canada) he understood why dating teenagers may be considered appropriate in some cultures. Beyond making no sense at all in trying to somehow pull Velshi into this, the comment, at the very least, appears to imply that Judge Moore did the very things the other letter sort of claims may be false, and... that it might be okay because some other cultures think something else entirely is okay. Or something. None of it makes sense at all. “Culturally speaking there’s differences. I looked up Ali’s background, and wow, that’s awesome that you have got such a diverse background, it’s really cool to read through that," attorney Trenton Garmon said when asked why Moore would need permission from girls' mothers to date them. “What does Ali Velshi’s background have to do with dating children, 14-year-old girls?” co-host Stephanie Ruhle interjected. Velshi was born in Kenya, raised in Canada and graduated from Queen’s University in Ontario. “In other countries, there’s arrangement through parents for what we would refer to as consensual marriage,” Garmon said. “Ali’s from Canada,” Ruhle said. “Ali’s also spent time in other countries,” Garmon said. “So it’s not a bad thing.” “I don’t know where you’re going with this, Trenton,” Velshi said. I'm guessing that Alabama Media Group is not exactly worried. Indeed, it has responded succinctly: Michelle Holmes, Vice President of Content for Alabama Media Group, responded Wednesday to the letter. "Roy Moore seeks election to the United States Senate. As such a public figure, he merits and can expect intense scrutiny by the electorate and the media on its behalf, including by Alabama Media Group, the state's largest media outlet." "We stand behind our past reporting on Roy Moore, and vow to continue to doggedly pursue the truth on behalf of the people of Alabama. These threats will not silence us, and they will not slow us." Of course, as some have pointed out, it's possible that Moore could file a lawsuit, just so he can claim that the articles about his actions are false... but then drop the case soon after the election next month (win or lose). That seems like a risky move and could backfire in all sorts of ways, but I don't think anyone's going to be arguing that Moore or Garmon are paragons of good decision making right now. Either way, this quickly runs up the rankings of the dumbest blustery legal threat letters we've seen -- and we've seen a lot. Permalink | Comments | Email This Story

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Note: I wrote this post last night, before the news broke this morning that Franken is yet another powerful man sexually abusing women. That story is horrific and gross and Franken deserves all the shit (and more) that he's getting for it. This story is not about that, but about a speech he gave last week. I'm guessing that (quite reasonably) more people will be focused on those revelations rather than this dumb speech, but I wanted to at least explain why the speech was dumb too. Last week, Karl wrote a post about Senator Al Franken's keynote speech at the Open Markets Institute -- a group that has been getting plenty of attention of late for arguing that big tech companies are too big and too powerful. Karl's post focused on Franken's weird argument that "net neutrality" should apple to edge companies like Google and Facebook, which made no sense. But what's more troubling to me is that Franken's whole speech was bordering on incomprehensible. This is disappointing, as I tend to think that Franken is pretty thoughtful and careful as a Senator (even when I disagree with him at a policy level -- such as with his support of PIPA). The speech seems to basically be Franken throwing off random quips that attack just how big internet companies are, which is certainly red meat for the Open Markets crowd. And I don't deny that there are some very serious questions to be asked about the size and power of companies like Google, Facebook, Amazon and the like... but Franken's speech was not that. But because it has a few quotable lines and is attacking everyone's favorite punching bags, it's being hailed by sites like Wired as "the speech big tech has been dreading." If this is the speech that big tech has been dreading, they've been worrying about nothing. Much of Franken's speech can be summarized as listing off the general complaints lots of people have about Google, Facebook and Twitter. Specifically: these sites are big, they may have too much power, they track too much info and bad people abuse the sites. All of those things may actually be true -- but such arguments should be presented with actual evidence and some idea of what to do about it. Franken, on the other hand, gives a bunch of points that don't hold together and repeatedly contradict his own statements within this very speech. He careens back and forth wildly from "these sites should stop bad stuff" to "how dare these sites think they can decide what's good and what's bad online." Over and over again -- with an interlude at one point that's all about "how dare these sites not prop up my friends in Hollywood." People who hate Google and Facebook have been cheering on this speech, but it doesn't do them any favors either, because the thread of the speech is non-existent. There's no coherent message that comes out of it, other than that Franken has no clue what he's talking about here, but wanted to please the Google and Facebook haters, and so he tossed out every cliche he could think of, even when they were self-contradictory. Let's go through the speech bit by bit: As lawmakers grapple with the revelations regarding Russia’s manipulation of social media during the 2016 election, many are shocked to learn the outsized role that the major tech companies play in so many aspects of our lives. Not only do they guide what we see, read, and buy on a regular basis, but their dominance – specifically in the market of information – now requires that we consider their role in the integrity of our democracy. This is actually a good start. The events of the last year should have people wondering about how these platforms can impact democracy. I think lots of people are asking that question. But it quickly goes off the rails... Last week’s hearings demonstrated that these companies may not be up to the challenge that they’ve created for themselves. In some instances, it seems that they’ve failed to take commonsense precautions to prevent the spread of propaganda, misinformation, and hate speech. What "challenge" have they "created for themselves"? The platforms he's talking about have focused on increasing communications among anyone -- and sometimes those communications are not good. And that's a concern, but is it the responsibility of the tools to determine which speech is good and bad? Even more to the point -- do we want internet platforms to be the ones saying that "propaganda, misinformation and hate speech" (with no clear definitions) are not allowed? That would create all sorts of problems worse than the supposed "challenge" Franken is so worried about. Also, making the platforms somehow responsible is a ridiculous idea, as it only gives them much more power -- and, as he notes in his opening paragraph, he's already upset about how dominant they are. So even just in the first two paragraphs he's contradicted himself. They have too much power, and he's shocked that they don't use that power to silence perfectly legal speech that he doesn't like. And this is leaving aside the idea that if Facebook, Google, Twitter and such suddenly announced that they weren't allowing "propaganda or misinformation" online people would be up in arms as they took down lots of perfectly legal speech that people supported. Almost all political content is propaganda or misinformation of some kind or another. Hell, one could argue that this speech is full of misinformation. And now Franken is saying that these platforms should be forced to "prevent" such speech? Senator John Kennedy, a Republican from Louisiana, asked Google, Facebook, and Twitter some really tough questions in a judiciary committee hearing, and he captured my takeaway from recent events perfectly: the power of these companies “sometimes scares me”. So, now we're back to them being too powerful. Paragraph 1: too powerful. Paragraph 2: why don't they use their power to censor more? Paragraph 3: they have so much power it scares me. The platforms that big tech has designed may now be so large and unruly that we can’t trust the companies to get it right when they do start paying attention. If you have five million advertisers a month using your highly sophisticated, nearly instantaneous ad platform, can you ever really know who all of them are? Can you ever catch all the signals that would seem obvious to a pair of human eyes – for example, political ads that are paid for in rubles? And, boom, we're right back to these platforms not actually exercising their power. And then getting confused about what's really a key point in all of this. It's true that you can't really know who all the users of these platforms are. And that's part of the reason why these sites are so useful. The fact that anyone can go and buy ads on Facebook is actually a wonderful thing for most businesses that use the platform. It has taken away the traditional gatekeepers, who made advertising difficult, expensive and poorly targeted. Now, there are other issues with the targeting of ads, related to privacy questions or just the general "creepy" factor, but complaining that these platforms can't "know" all the details of all their customers kind of misses the point about why these platforms are so useful. Before I move on, I want to be very clear about something. In my view, the size of these companies is not – in isolation – the problem. But I am extremely concerned about these platforms’ use of Americans’ personal information to further solidify their market power and consequently extract unfair conditions from the content creators and innovators that rely on their platforms to reach consumers. So... now it's not the size that's the problem, but the power to use that size to be unfair to "content creators and innovators that rely on their platforms to reach consumers." Okay, but you just complained in the previous paragraph that it's a problem that these sites don't "know" all of their customers, suggesting that they should be much more restrictive. But this paragraph suggests you think they're too restrictive and people who use the platform to reach "consumers" should have more ability to do so. WHICH ONE IS IT, AL? And as has become alarmingly clear in recent months, these companies have unprecedented power to guide Americans’ access to information and potentially shape the future of journalism. It should go without saying that such power comes with great responsibility. Yes, this is a concern, but you keep going back and forth on why it's a concern. Is it a concern because the companies aren't blocking propaganda and misinformation? Or is it a concern because they're not letting enough information through to end users? As the founder and top Democrat on the judiciary subcommittee on privacy, technology, and the law, I’ve watched as the tech community’s collection and treatment of users’ personal information has evolved over the years. In the past, I’ve raised concerns about Facebook’s use of facial recognition technology, and I’ve pressed Google on its unauthorized collection of K-12 student data. While I appreciate that these companies have taken steps to improve transparency of their use of Americans’ personal information in recent years, unfortunately, accumulating massive troves of information isn’t just a side project for them; it’s their whole business model. We are not their customers; we are their product. I've already explained why I find the expression "if you're not paying, you're the product" to be a silly and meaingless statement, but there is certainly a legitimate concern about how much information these companies have and what they do with that information. Franken won't get an argument from me on that point, but given how his speech keeps swinging back and forth, it's hard to see where he's going with this. Facebook and Google’s vast collection of our personal information has fueled their advertising business, which has now become their main source of revenue and given the companies a strong duopoly in the digital advertising market. Facebook announced that it made $9.3bn in the second quarter this year, with 98% of that coming from its advertising business. Google made $26bn, with 87% coming from advertising. Once these companies establish dominance over our data, they can more easily erect barriers to entry for potential competitors – in the digital advertising market as well as the other markets in which they operate. Ultimately, they have even less incentive to respect our privacy going forward or more closely monitor their advertising tools for use by bad actors. Again, this may be a legitimate concern. The two companies are behemoths in the online advertising space, and it certainly could be bad if they then leveraged that position to stamp out competition. That's something that I think is absolutely worth paying attention to and using antitrust law to prevent. But... Franken tries to tie this to a failure to "closely monitor their advertising tools for use by bad actors." And that takes us back to the basic confusion about what Franken is concerned about here. Is it that they have too much power to silence people... or that they have no incentive anymore to silence people? Because those two things seem to be in direct conflict, and Franken seems to be arguing them both simultaneously (even going back and forth on them as if they're the same thing). About the only way this makes sense is if Franken is really arguing that Google and Facebook should be legally required to show people "more good stuff" and legally required to show us "less bad stuff" but without giving any actual definition of "good stuff" or "bad stuff." And perhaps this is why some people are cheering on the speech. Who doesn't want more good stuff and less bad stuff? But by assuming that (1) it's easy to tell the good stuff from the bad stuff and (2) that everyone will agree to what's good and what's bad and (3) giving that much power over truth to a few private companies won't backfire... is bizarre. You may not like that Facebook uses your likes, shares, and comments to decide for you which advertisements or friends’ posts are most relevant for your News Feed. And you may not like that Google can now deliver ads to you by combining its DoubleClick data on your web-browsing behavior with your personally identifiable information that it gathered through your Gmail account. But are you ever going to delete the profile and connections you’ve spent years establishing on the world’s dominant social network? Or get rid of your Gmail account? Again, this is a valid concern, but seems contradictory to his alternating point about wanting these platforms to do more to stop "bad" stuff from happening on their platforms. To do that, wouldn't they need access to information like this? The information that these companies collect can also be a very dangerous weapon if it falls into the wrong hands. ProPublica recently revealed that up until two months ago, Facebook allowed advertisers using the company’s self-service ad-buying platform to target more than 2,000 people who expressed interest in the topic of quote “Jew hater” and other antisemitic themes. While these categories were apparently automatically generated by an algorithm based on users’ self-reported interests, it is Facebook’s responsibility to monitor such tools and ensure that it isn’t facilitating or – worse – making a profit on such hateful activity. Facebook ultimately removed the categories from the ad platform, but only after reporters notified the company about it. And... we're right back to demanding that Facebook spy on people even more. What the fuck, Senator Franken? In one breath you say that Facebook is tracking too much information and in the next you complain that it's not tracking enough information to stop anti-Semites. Which is it? Algorithms seem to be a convenient excuse. Facebook has cited its algorithms for creating hateful advertising categories and failing to catch a hostile foreign power using its platform to spread lies and sow discord. Google has previously said that its algorithms necessarily include websites dedicated to illegal activity in search results, such as pirate sites, even as in other instances it maintains that its results do reflect Google’s judgment. Okay. So here we have Senator Franken complaining that Facebook and Google are not discriminating and blocking certain content, so stay tuned, because this will seem mighty silly in a few more paragraphs. And at the same time, Facebook, Google, and Amazon have used their algorithms to extract unfair terms and fees from those dependent on its platform, promote their own products and services above those of competing companies, and even manipulate the emotional state of its users. I'm curious what unfair fees he's talking about. He doesn't elaborate. But again, the message here is so muddied. He's concerned these sites have too much power, at the same time he's upset that they don't get more aggressive in abusing that power. In 2014, Facebook published its findings from an experiment in which it altered its News Feed algorithm for a segment of its users – unbeknownst to them, of course – and filtered posts based on their emotional content. As orchestrated by the altered algorithm, some users saw predominantly positive content while others saw mostly negative content. Unsurprisingly, the big takeaway was that Facebook has the power to influence our psychological state. That’s scary. Yes. It is. So why, just paragraphs earlier, were you demanding that Facebook actively modify their feeds to show less bad stuff and promote more good stuff? Weren't you demanding the exact thing you now claim is "scary"? So on the one hand, the troves of user data and automated algorithms make these companies appear almost clumsy. But on the other, they’re a sophisticated strategic tool used to maintain and strengthen their own power. As Americans have lost meaningful control over their personal information, the content creators that rely on platforms to reach consumers have lost all of their leverage. He keeps throwing in these weird little digs about "content creators" which seems like a dog whistle on copyright issues. But this makes no sense. Most content creators pre-internet had no leverage at all. Most content creators were drummed out of the business if they had no deal with a giant gatekeeper -- record label, movie studio, book publisher -- who had all the leverage and demanded not just your copyright, but 85% of your earnings. These new platforms have opened up the ability for all those people who couldn't even get past the gatekeepers to start making money online, and other services like Kickstarter and Patreon have opened up ways for them to have tremendous leverage by going direct to their fans. What's that have to do with the fact that Facebook is big? I haven't the slightest idea. But, I will say that tons of people who make money online these days from their creations have these platforms to thank for being able to build up such a large audience to support them. I understand what it means to dedicate your life to writing, creating, and praying that someone somewhere will eventually get to appreciate your work. In more ways than not, the internet, along with all the companies we’re discussing here today, has made it possible for every American – no matter their corner of the country – to express themselves to their friends – and to people all over the world. Okay, so now we're saying that these platforms have been amazingly beneficial right after saying they've wiped out all leverage. Hmm. But as the wealth of information available on the internet has grown, big tech has taken it upon itself to sort through all the viewpoints, news, and entertainment, and decide for us what we should read, watch, buy, or even how we should engage in civil society. What the hell, Al? You keep going back and forth. First you want them to delete bad stuff online, and now you're back again complaining when they do exactly what you were asking a few paragraphs ago? As far as I can tell, Al Franken's big complaint here is "why do Facebook and Google sometimes show stuff that I, Al Franken, dislike, and why doesn't it do more to promote the content that I, Al Franken, really like?" That's the only way in which this speech makes any sense at all. And they’re doing it all under the shadow of complicated algorithms that make little sense to either the content creators whose livelihood depends on them or the users whose everyday decisions they’re controlling. Hmm. Did the decision-making that Universal Music used to fuck over musicians decades ago make any sense to musicians back then? No, it didn't. And, back then, musicians were fucked if a giant label like that did them wrong. Today, artists can strike out on their own, build fan bases on their own and use a variety of services to make it work. Not everyone will succeed, but any content creator relying on Facebook or Google to be a success these days made a bad decision. A US Senator should not be telling companies that they have to make certain content creators succeed. That's scary. It doesn’t require an antitrust lawyer to understand that these companies’ dominance in the market of information gives them tremendous power to dictate terms with journalists, publishers, and authors and to control the information available to consumers. Once again, I don't know what point Franken is making. The companies are bad because they have the power to censor content and the companies are bad because they don't censor content. Which is it? As it stands now, Google and Facebook control 75% of all internet news traffic referrals, meaning that three out of four times an internet user accesses a news story online, they get there via Google or Facebook. The numbers are even more alarming by topic. According to Parsely analytics, almost 60% of “US Presidential Politics” traffic comes through Facebook, nearly 25% comes through Google, and less than 16% comes through other sources. With this unprecedented power, platforms have both the incentive and the ability to redirect into their own pockets the advertising dollars that once fueled the newspaper business. And news publishers fighting for eyes are forced to navigate Facebook and Google’s optimization policies, which have previously prevented news organizations from using paywalls or offering subscription services and have driven journalists to write stories that they know will be promoted in Google Search, on News Feeds, and in the “trending” section of Facebook. This is a concern. But it's because news publications fucked up. They got sucked into this. Some of us (like, literally, us), focused on creating good content and building up a solid audience who would return directly. Some of us (like, literally, us) chose not to play the games of SEO and social media tricks, because that's a waste of time and get you sucked into this vortex. Yes, some news orgs went the other direction and that was dumb of them. But is Franken really arguing that we should prop up news organizations that made a dumb decision and handed more power over to Google and Facebook? While I appreciate the companies’ recent efforts to ensure that publishers and journalists are more adequately compensated, the end result may be the same: journalism for the masses and the never-ending search for the next viral story. Wait. So... now the complaint is one about human nature? In his book World Without Mind, Franklin Foer describes newsrooms’ reliance on Chartbeat – a site that allows them to track in real time the readership of each and every article, which of course fuels advertising, and ultimately puts pressure on journalists and editors to create the most click-worthy story. To quote Foer: “The site’s needle made us feel as if our magazine were a car, showing us either sputtering up the hill of a poor traffic day or cruising to a satisfying number.” During the 2016 election, then presidential candidate Donald Trump, with his truly unpredictable outbursts on Twitter, was the perfect focus for newsrooms seeking as much traffic as possible. Again, it was always dumb for news orgs to focus on clicks rather than building up a loyal audience. We use Chartbeat here, but I'm the only one who looks at it and none of our writers get to see it because we've never wanted our writers to focus on clicks or traffic. We want them writing great stories so that all of you keep coming back. A flash in the pan from some other site sending traffic is nice, and maybe a few people stick around, but that's not a strategy. That's chasing the wind. Lots of news publishers made mistakes, but why should that be Franken's concern? And why would he blame Google and Facebook for it? Tragically, the need to find the next viral story may soon hit the book-selling business as well. In 2007, Amazon revolutionized reading when it unveiled the Kindle. With the introduction of the e-reader, Americans could instantly access almost any book they desired – from the comfort of their home and at an all-time low price. It is widely reported that Amazon strategically set their prices below cost in an effort to capture the market. Indeed, for years, American consumers benefited from the company’s ultra-low prices and slowly shifted their business away from brick-and-mortar stores and other online retailers. Currently, Amazon controls over 83% of e-book sales, nearly 90% of online print sales, and almost 99% of digital audio sales. Amazon has since used its unprecedented monopsony power to force publishers to agree to contract terms and conditions that the publishers say have stalled price competition among book distributors, ultimately resulting in higher e-book prices for consumers. How do you set ebook prices "below cost"? The "cost" of another copy is zero. Amazon's original ebook pricing was a $9.99 flat rate for every book. It was only after Apple colluded with other publishers to change that pricing and push for higher prices that Amazon was pressured (not the other way...) into variable pricing. This is a bizarre rewriting of history by Franken. Amazon has also used its power to demand additional payments for critical items like warehousing and inclusion in its personalized user recommendations – an algorithm that I’m sure most users assume is based purely on their personal preferences. And now that Amazon is a publisher itself, it has every incentive and ability to promote its own books over those of others in user recommendations, price promotions, and bestseller lists. Reasonable point. But is it happening? If it is, that's worth exploring. Just saying it has the incentive to do so is meaningless if there's no evidence of this abuse of power. As a recent article by Lina Khan so neatly lays out, in many ways, Amazon’s evolution in the book business is the perfect illustration of how an entity can use anticompetitive tactics to not only capture a market, but also maintain it, and ultimately use its platform to enter and dominate entirely new markets. Like diapers. And as we’ve seen in the book business, once Amazon captures a market, it then has the ability to eliminate competition on consumer prices. So while Amazon’s prices on any given item may be low for now, it’s only a matter of time before the company starts squeezing consumers. Like we’ve seen with diapers. If Amazon provides a better diaper buying experience than others, what's the problem, exactly? Yes, Amazon is big, but if it really starts abusing that position, doesn't that seem like an opening for others to jump in? I mean, diapers are an odd example, since Amazon did, in fact, buy Diapers.com because it was an upstart that did a damn good job of competing with Amazon. And then after Amazon bought the site, Diapers.com's founder went off and founded a new site that also competes with Amazon. Unsurprisingly, as a result of Amazon’s tactics in the book business, publishers say they’re selling fewer books than they otherwise would. Who exactly determines what "they otherwise would" here? Because that phrase is doing a lot of work for a claim made with no basis at all. And they fear the day that they’ll be unable to invest in new authors or less popular genres, instead focusing all of their diminishing resources on the “blockbusters” of the book business. These are the some of the long-term effects that I find truly disturbing. This is the same bullshit line that the music and movie industries have given for decades. And it's always turned out to be wrong. It's based on what the giant gatekeepers (record labels, movie studios, book publishers) are saying, ignoring that the internet has enabled tons of musicians, filmmakers and authors to create, distribute, promote and monetize. The idea that there will suddenly be less investment in books is ludicrous if you look at how many books are being published today vs. two decades ago. And much of that is because of Amazon and the ability for people to avoid the publishers altogether. Now, I have spent much of my time in the Senate advocating for strong net neutrality rules to preserve the longstanding principle that all lawful content on the internet should receive equal treatment from internet service providers regardless of who owns the content or how much money he or she has in the bank. And in 2015, millions of American consumers and businesses celebrated the FCC’s landmark vote to preserve a free and open internet under Title II of the Communications Act. Ensuring those strong rules are maintained – and enforced – remains my top priority. As tech giants become a new kind of internet gatekeeper, I believe the same basic principles of net neutrality should apply here: no one company should have the power to pick and choose which content reaches consumers and which doesn’t. And Facebook, Google, and Amazon – like ISPs – should be “neutral” in their treatment of the flow of lawful information and commerce on their platforms. And yet in this screed you keep insisting that Google and Facebook need to block bad content. And now you're back to saying they should be neutral. Do you even realize how directly in conflict your own speech is with your own speech? Following years of hard work and dedication, we found in the Open Internet Order a strong and time-tested framework to protect net neutrality. While we fight to preserve the Order, we must now begin a thorough examination of big tech’s practices in order to secure the free flow of information on the internet. The free flow of information on the internet is incredibly important. I've been fighting it for probably longer than Franken knew the internet existed. But that's not what Franken is saying here. In this speech, he's arguing for the exact opposite of what he thinks he's arguing for. Everyone is rightfully focused on Russian manipulation of social media, but as lawmakers, it is incumbent upon us to ask the broader questions. How did big tech come to control so many aspects of our lives? How is it using our personal information to strengthen its reach and its bottom line? Are these companies engaging in anticompetitive behavior that restricts the free flow of information and commerce? Are they failing to take simple precautions to respect our privacy and protect our democracy? And finally, what role should these companies play in our lives, and how do we ensure transparency and accountability from them going forward? This I agree with. These are all good questions. But, you can't dig into these issues if you don't actually have a clue about what's going on, and the rest of Franken's speech suggests he has no clue. And that's unfortunate. We need to talk about data in digital advertising and how it influences competition and encourages a disregard for Americans’ privacy. We need to better understand how past deals – Google’s purchases of DoubleClick and Waze or Facebook’s acquisitions of WhatsApp and Instagram, for example – have impacted consumers’ privacy and big tech’s ability to establish barriers to entry for emerging rivals. And finally, we desperately need to conduct vigorous oversight – in the form of investigations and hearings – to fully understand current practices and the potential for harm. We must work together to make this happen. Sure. We should talk about these things. I have my concerns about those acquisitions as well, but again, Franken's speech is all over the place. There's no consistent message at all. It's just "how dare the platforms not take more responsibility in blocking content... but also how dare they block any content?" Also, "how dare they become so useful that people use them... and how dare they not prop up news organizations that didn't innovate?" It's "how dare these platforms become successful for content creators... but also how dare they not magically make all content creators successful?" I'm sure that the haters of the internet have lapped this talk up and are all excited about it. I've seen tweets from people cheering it on, because it slams Google and Facebook and Amazon. And there are reasons to be worried about all of those companies. But this speech makes no sense at all. As a thought experiment: if you worked at one of those companies and sincerely wanted to change things to make Senator Franken happy after hearing this speech, what would you do? You should not block or favor any content, but you should not allow misinformation or propaganda. How do you do both of those things? Perhaps Senator Franken can explain. Permalink | Comments | Email This Story

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The $15 Raspberry Pi Beginner's Bootcamp is an all-inclusive introduction to the Raspberry Pi platform (Raspberry Pi not included). Catered for all levels, this project-based course will get you up and running with the basics of Pi, before escalating to full projects. Before you know it, you'll be building a gaming system to play old video games and a personal digital assistant using the Google Assistant API. 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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As AT&T and Verizon shift their focus from fixed-line broadband to the more sexy world of Millennial advertising (often quite poorly), they've effectively decided to hang up on millions of unwanted DSL users they refuse to upgrade and no longer want. This has often involved imposing relentless rate hikes on service speeds straight out of 2003, or in many cases simply refusing to repair these lines. They've also convinced state after state that if they gut consumer protections keeping these lines intact, better, faster broadband connections will miraculously spring from the sidewalks. AT&T and Verizon argue that state and federal guidelines on this front are just outdated regulations preventing them from building the next-generation networks of tomorrow. Fiber is more reliable and wireless is more flexible, they argue, making older lines irrelevant. That, however, ignores these companies' refusal to actually fully deploy fiber, the fact that pricey & capped wireless isn't a suitable replacement for unlimited DSL, that these lines were taxpayer subsidized, or that many of these DSL and POTS (plain old telephone service) services are still very much in use by the elderly and under-served. In reality, this "IP transition" (as AT&T execs like to call it) is having a very real, very negative impact on broadband markets. The biggest impact being that with telcos refusing to upgrade their DSL networks at any scale, cable companies are running away with a growing fixed-line broadband monopoly in many parts of the country. That means higher prices, worse customer service, and the kind of punitive and arbitrary usage caps only made possible by a lack of competition. Again though, if you ask AT&T and Verizon, none of this is a big deal because existing wireless services are perfectly suitable replacement for these fixed-line connections. But as people found out when Verizon refused to upgrade DSL lines in the wake of Hurricane Sandy, that's simply not the case. Wireless is often significantly more expensive, frequently capped (especially in rural areas), and often hard to get in many rural, tree-happy markets. Fifth-gen wireless may someday be a suitable replacement depending on cost, but for rural markets that future is a decade or more away. So a few years back the FCC under Tom Wheeler crafted a set of fairly basic "functional tests" (pdf) intended to prevent telcos from pulling copper-based phone and broadband service without ensuring there's a comparable replacement. The goal: to ensure that services that rely on traditional DSL and POTS still work, and that competitors that service customers over these lines could still access them. Not too surprisingly, telcos have been lobbying the government to gut this guidance. Also unsurprisingly, current FCC boss Ajit Pai has been quick to help them do just that: "The Federal Communications Commission will vote Thursday on a plan that, according to Chairman Ajit Pai, will strip away regulations that prevent telcos from upgrading their networks. But in doing so, the Republican-controlled FCC plans to eliminate a requirement that telcos provide Americans with service at least as good as the old copper networks that provide phone service and DSL Internet. The requirement relates to phone service but has an impact on broadband because the two services use the same networks. While it should be fairly clear that this is yet another gift to the nation's telecom duopolies, as with its net neutrality, media consolidation, and other recent policy 180s, the FCC is engaging in some tap-dance hyperbole to try and deny this is what they're doing: The FCC press office has been much different since @AjitPaiFCC took over. When I reported that the FCC is letting carriers turn off copper networks without offering adequate replacements, they were extremely evasive about what they're actually repealing. https://t.co/EvdEEHGL0P pic.twitter.com/xOEfy4h00m — The real Jon Brodkin (@jbrodkin) November 15, 2017 More concisely, the FCC's existing "functional test" for carriers seeking to abandon DSL networks requires they prove that any replacement service is just as good as the services they're eliminating. Since these carriers know wireless is often more expensive and often unavailable, and really don't want to extend fiber into these areas (despite receiving countless billions to do so) they want those restrictions eliminated. It doesn't matter if these lines were paid by taxpayers and are very much still in use; they're focused on making money in mobile advertising. To tap dance around these issues, Pai's proposal, misleadingly-titled "Accelerating Wireline Broadband Deployment (pdf)," doesn't technically get rid of the guidance, but weakens it to the point of being effectively useless, as consumer groups like Public Knowledge and the NAACP make clear: "Under current rules, an incumbent carrier cannot discontinue, reduce, or impair service unless there is a replacement service that is as good as the discontinued service. This is called the Functional Test. The FCC's order will now interpret "service" to include a carrier's tariff. A tariff is a very basic description of what a carrier offers and at what rate. This means the Commission's remaining notice requirements will only apply to basic services, but will not include 911 services, ensure network reliability, or interconnection with devices consumers use such as medical monitors, alarm systems, fax and credit card machines, and equipment for people who are hearing impaired. In some cases, the sound of a dial tone may constitute service under the tariff test and therefore not even trigger a public comment and review." Again this is all very wonky, but a transition away from these taxpayer-subsidized fixed copper lines without ensuring there are reliable (or frankly any) alternatives will have a profound negative impact on your current cable broadband bill and service, while making it harder for less sexy markets to get quality broadband connections (already a significant problem we seem intent on ignoring). And again, Trump's FCC is pushing a telco wishlist policy they know full well will hurt consumers and the health of the nation's telecom infrastructure, while professing they're doing the exact opposite. Permalink | Comments | Email This Story

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Given the Trump administration's rubber stamping of every mono/duopolist desire (killing net neutrality, broadband privacy rules, media consolidation limits), most expected the AT&T Time Warner merger to see approval without much fuss. After all, while the problems caused by vertical integration deals like Comcast NBC Universal are very real, it didn't seem likely that an administration running rough shod over consumer protections would give much of a damn. Especially given that Trump DOJ antitrust boss Makan Delrahim had already been on record stating he saw no problems whatsoever with the deal. That's why leaked reports that the DOJ was suddenly considering blocking the deal came as such a surprise. Said reports indicated that the DOJ was considering a lawsuit to thwart the deal unless AT&T was willing to divest either CNN-owner Turner broadcasting, or DirecTV -- which AT&T acquired last year. There are two generally-accepted theories as to what motivated the Trump administration to hamstring the deal, neither of which (unless you're immensely gullible) involve actually caring about the very real negative repercussions the deal will have on telecom/media markets and consumers. One is that the Trump administration is simply getting vindictive revenge against CNN for its critical coverage of the president, a path one Trump administration official said was definitely on the table in a July report in the New York Times: "White House advisers have discussed a potential point of leverage over their adversary, a senior administration official said: a pending merger between CNN’s parent company, Time Warner, and AT&T. Mr. Trump’s Justice Department will decide whether to approve the merger, and while analysts say there is little to stop the deal from moving forward, the president’s animus toward CNN remains a wild card." But there's another motivation here for the Trump administration: doing a favor for Rupert Murdoch. Reports have indicated that Murdoch has been pressuring the Trump administration to block the deal since at least January, since the combined company would pose a greater competitive threat to his News Corp. empire. Reports more recently indicate that Murdoch approached AT&T at least twice in the last six months looking to convince AT&T to sell CNN, an idea AT&T isn't interested in. In short, it's very possible that Trump may be using the DOJ to force AT&T to make a deal with Murdoch. AT&T lawyers clearly smell something fishy here, and the company quickly indicated it will be asking a court for any and all communications between the DOJ and the Trump administration. Not too surprisingly, AT&T's inquiry will focus, in part, on the role Rupert Murdoch is playing in scuttling the deal: "In the event of a trial over the $85.4 billion deal, AT&T intends to seek court permission for access to communications between the White House and the Justice Department about the takeover, said the people, who asked not to be named because the deliberations are private...AT&T will also try to get any evidence about whether Rupert Murdoch tried to influence the review, according to one of the people. Murdoch, a Trump confidant, controls 21st Century Fox Inc., the parent of Fox News. The president has praised Fox News’s coverage of his administration." The entire affair is just another indication that 2017 is simply too weird for words. Blocking the deal on antitrust grounds is the right thing to do to protect streaming markets from AT&T's long, documented history of anti-competitive behavior. But is it still the right thing to do if the only real goal is to silence critical media voices while aiding a Trump ally's own business ventures? Pick your poison. Permalink | Comments | Email This Story

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The history of governments attempting to demonstrate either their own military prowess or the dastardly actions of others -- usually America -- is long and storied. South Korea used footage from war games to show off weapons I guess it must not have, Egypt attempted to pass off game footage as Russian airstrikes against ISIL/ISIS/whatever they're supposed to be called, and North Korea attempted to show off its nuclear capability by pinching some Modern Warfare 3 footage. Even Russia has tried its hand at this, attempting to show that America was arming Ukrainian rebels with Stinger missiles with some stills from the game Battlefield 3. That any of these countries thought they would get away with these fakes is nearly as funny as their having not considered how much international egg they'd have on their faces once they were found out. But you'd at least have thought these countries would learn their lesson. In the case of Russia, it seems not so much. The Russian Defense Ministry recently accused the American military of, get this, helping ISIS in order to promote American interests in the Middle East. While that claim is, on its face, fairly laughable, so too was the photo evidence Russia provided. If those images look sort of familiar to you, it's probably because you've played AC-130 Gunship Simulator: Special Ops Squadron. It seems that the photographic evidence offered by the Russian Defense Ministry is just more video game stills. In a sign of how lazy some propagandists can be, on Tuesday the official Russian-language Twitter account for the country’s defense ministry tweeted a selection of photos, claiming the images were irrefutable evidence that the U.S. was helping ISIS terrorists. However, one of the photos the Ministry of Defense tweeted (and later deleted) appears to be from the video game AC-130 Gunship Simulator: Special Ops Squadron, a clip of which is available on YouTube. The account also posted the photos along with a longer body of text on Facebook. Researchers from verification and citizen-journalism platform Bellingcat debunked the photo after someone else tweeted it, claiming a video was live drone-attack footage over Mosul, Iraq. Whatever those other photos are from, it's clear they are not from American forces happily supporting ISIS. We've done bad things in this country, but this claim is simply off the reservation. Russia, for its part, deleted the debunked photo, but maintained the claim that America is now helping ISIS in the Middle East. Maybe we can grab a couple of stills from The Adventures of Rocky and Bullwinkle as evidence that Russians are committing mass genocide of all moose and squirrel. Permalink | Comments | Email This Story

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