posted about 2 hours ago on techdirt
For quite some time now, we've pointed out that we should stop blaming technology for problems that are actually societal. Indeed, as you look deeper at nearly every "big tech problem," you tend to find the problem has to do with people, not technology. And "fixing" technology isn't really going to fix anything when it's not the real problem. Indeed, many proposals to "fix" the tech industry seem likely to exacerbate the problems we're discussing. Of course, the "techlash" narrative is incredibly powerful, and the media has really run with it of late (as have politicians). So, it's nice to see at least Wired is starting to push back on the narrative. A new cover story makes it clear that "Bad Algorithms Didn't Break Democracy." It's a great article, by Gideon Lewis-Kraus. It acknowledges the narrative, and even that the techlash narrative is appealing at a surface level: It’s easy to understand why this narrative is so appealing. The big social media firms enjoy enormous power; their algorithms are inscrutable; they seem to lack a proper understanding of what undergirds the public sphere. Their responses to widespread, serious criticism can be grandiose and smarmy. “I understand the concerns that people have about how tech platforms have centralized power, but I actually believe the much bigger story is how much these platforms have decentralized power by putting it directly into people’s hands,” said Mark Zuckerberg, in an October speech at Georgetown University. “I’m here today because I believe we must continue to stand for free expression.” If these corporations spoke openly about their own financial interest in contagious memes, they would at least seem honest; when they defend themselves in the language of free expression, they leave themselves open to the charge of bad faith. But as the piece goes on to highlight, this doesn't really make much sense -- and despite many attempts to support it with actual evidence, the evidence is completely lacking: Over the past few years, the idea that Facebook, YouTube, and Twitter somehow created the conditions of our rancor—and, by extension, the proposal that new regulations or algorithmic reforms might restore some arcadian era of “evidential argument”—has not stood up well to scrutiny. Immediately after the 2016 election, the phenomenon of “fake news” spread by Macedonian teenagers and Russia’s Internet Research Agency became shorthand for social media’s wholesale perversion of democracy; a year later, researchers at Harvard University’s Berkman Klein Center concluded that the circulation of abjectly fake news “seems to have played a relatively small role in the overall scheme of things.” A recent study by academics in Canada, France, and the US indicates that online media use actually decreases support for right-wing populism in the US. Another study examined some 330,000 recent YouTube videos, many associated with the far right, and found little evidence for the strong “algorithmic radicalization” theory, which holds YouTube’s recommendation engine responsible for the delivery of increasingly extreme content. The article has a lot more in it -- and you should read the whole thing -- but it's nice to see it recognizes that the real issue is people. If there's a lot of bad stuff on Facebook, it's because that's what its users want. You have to be incredibly paternalistic to assume that the best way to deal with that is to have Facebook deny users what they want. In the end, as it becomes increasingly untenable to blame the power of a few suppliers for the unfortunate demands of their users, it falls to tech’s critics to take the fact of demand—that people’s desires are real—even more seriously than the companies themselves do. Those desires require a form of redress that goes well beyond “the algorithm.” To worry about whether a particular statement is true or not, as public fact-checkers and media-literacy projects do, is to miss the point. It makes about as much sense as asking whether somebody’s tattoo is true. A thorough demand-side account would allow that it might in fact be tribalism all the way down: that we have our desires and priorities, and they have theirs, and both camps will look for the supply that meets their respective demands. Just because you accept that preferences are rooted in group identity, however, doesn’t mean you have to believe that all preferences are equal, morally or otherwise. It just means our burden has little to do with limiting or moderating the supply of political messages or convincing those with false beliefs to replace them with true ones. Rather, the challenge is to persuade the other team to change its demands—to convince them that they’d be better off with different aspirations. This is not a technological project but a political one. Perhaps it's time for a backlash to the techlash. And, at the very least, it's time that instead of just blaming the technology, we all take a closer look at ourselves. If it's a political or societal problem, we're not going to fix it (at all) by blaming Facebook. Permalink | Comments | Email This Story

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posted about 5 hours ago on techdirt
For more than a decade we've highlighted how the U.S. simply adores throwing taxpayer money at giant telecom companies in exchange for networks they then only half deploy. Whether it's on the city, state, or federal level, we've thrown untold billions at mono/duopolies which in turn dodge their obligations under these agreements with little to no real penalty. While sometimes this money winds up being used as intended, just as often this money winds up being pocketed by executives and shareholders with little discernible impact on America's broken and uncompetitive broadband markets. The latest case in point: both Centurylink and Frontier have informed the FCC they've failed to meet FCC required broadband milestones after receiving millions in taxpayer subsidies: "CenturyLink notified the Federal Communications Commission that it "may not have reached the deployment milestone" in 23 states and that it hit the latest deadline in only 10 states. Frontier similarly notified the FCC that it "may not have met" the requirements in 13 states. Frontier met or exceeded the requirement in 16 other states. Under program rules, the ISPs were required to bring Internet access to 80 percent of funded locations by the end of 2019 and must hit 100 percent by the end of 2020." Keep in mind, these deployment goals aren't exactly what you'd call difficult. Under the terms of the FCC's 2015 Connect America Fund Auction, the two ISPs agreed to expand access to DSL at speeds of 10 Mbps down and 1 Mbps (1 Mbps!) up in exchange for big taxpayer payouts. In CenturyLink's case, the company is slated to net $505.7 million annually for six years to deploy service to 1,174,142 homes and businesses in 33 states. For Frontier, the company received $283.4 million annually for six years to bring access to 774,000 locations in 29 states. Keep in mind these customers aren't even really getting broadband, which is defined as at least 25 Mbps by the FCC. What these territories are getting is overpriced, slow DSL, belched up from somewhere around 2003 or so from two companies that have a long, sordid history of atrocious customer service and a failure to upgrade or repair their aging networks. In most markets that's giving giants like Comcast and Spectrum an even bigger monopoly, resulting in higher rates for all broadband users as competition wanes. Unsurprisingly, throwing billions at companies for antiquated broadband service (that's never fully deployed anyway) doesn't really fix things. In large part because we don't fully understand the problem we're trying to fix. Despite a lot of claims to the contrary, we don't actually know where broadband is deployed. US broadband maps are notorious garbage, and the telecom lobby has fought tooth and nail against efforts to fix them. Why? It's two-pronged: better maps would only highlight a lack of competition (potentially prompting somebody to actually fix it), and it helps them obscure the waste and fraud on the subsidy end. Ideally, the FCC would step in here and punish both companies for failing to meet arguably modest goals or not being honest about where broadband is available. But there's little real indication that's actually going to happen. Just ask Verizon, which was given billions in subsidies and tax breaks by countless states and cities in exchange for fiber it never fully deployed. Or AT&T, which routinely receives billions in tax breaks, subsidies, and regulatory favors in exchange for jobs and broadband deployment that somehow never fully materialize. The penalties for both companies have been utterly nonexistent. Amusingly, the same FCC, telecom industry, and assorted industry sycophants throw face-fanning tantrums every time some podunk town in Nebraska decides to spend a million bucks to build a better alternative to Comcast. But you'll notice those same folks never have a single sour word to say about the multi-decade tendency to throw billions of dollars at unaccountable monopolies in exchange for networks they never fully deploy. These folks are usually pretty easy to spot: like Pai, they're usually busy going comically out of their way to even acknowledge the limited competition and high prices that plague the US broadband sector. Were you to do a proper audit of the telecom sector over the last 30 years, I'd all but guarantee the amount of money thrown at the sector could have funded a fiber optic line to every home in America several times over. Instead, thanks in large part to revolving door regulators and cronyism, we've built a system that throws unaccountable billions at giants like AT&T and Comcast, in exchange for substandard broadband, terrible customer service, and an eternal fountain of empty promises. Permalink | Comments | Email This Story

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posted about 8 hours ago on techdirt
As Techdirt has reported, the EU member states are starting to transpose the EU Copyright Directive into their national laws, and the results are as bad as we feared. France wants to implement the Article 17 upload filters without user protections, while Germany plans to place ludicrous restrictions on the use of press materials as part of its implementation of Article 15. What's particularly frustrating about the whole sorry EU Copyright Directive saga is that the law was very close to being thrown out last April. That was when the final vote by the EU Council (made up of representatives of the EU member states) took place. As Mike wrote at the time, because Sweden changed its original position, and voted against the Directive, it would only have required either Germany or the UK to do the same, and the legislation would have been dropped. An interesting wrinkle to the story is that Boris Johnson, then still jockeying for leadership of the UK Conservative party, tweeted that the EU Copyright Directive would be "terrible for the Internet", and that the UK "should not apply it." That was easy to say when he had neither power nor responsibility. But now that Johnson has become UK prime minister, and enjoys a massive majority in the House of Commons, which effectively means he can do whatever he wants, will he take the same position? Rather amazingly, it seems he will. A written question was submitted to the UK government: "To ask the Secretary of State for Business, Energy and Industrial Strategy, what plans the Government has to bring forward legislative proposals to implement the EU Copyright Directive in UK law." To which the UK government replied: The deadline for implementing the EU Copyright Directive is 7 June 2021. The United Kingdom will leave the European Union on 31 January 2020 and the Implementation Period will end on 31 December 2020. The Government has committed not to extend the Implementation Period. Therefore, the United Kingdom will not be required to implement the Directive, and the Government has no plans to do so. Any future changes to the UK copyright framework will be considered as part of the usual domestic policy process. That is, after providing one of the crucial votes of support that ensured the EU Copyright Directive would become law, the UK is not now going to implement it. A cynic might think that the UK has done this to gain an advantage over the rest of the EU as member states grapple with the serious harm the Copyright Directive will inflict on the region's Internet users and startups. In truth, it is probably more a reflection of the fact that the UK government will be so busy passing legislation to cope with the aftershocks of Brexit, it won't have time to deal with minor issues like copyright. And for those who will be celebrating this news as a great win, it's worth noting the careful phrasing of the reply: "Any future changes to the UK copyright framework will be considered as part of the usual domestic policy process". Although the UK government won't implement an EU law -- not least for dogmatic reasons -- it hasn't ruled out bringing in its own 100% true-Brit law that does much the same. It's unlikely that the well-connected UK copyright industry is going sit quietly and watch EU rivals gain special privileges online without demanding the same. Expect lots of whining and cries of pain from the recording industry and publishers until the UK government eventually gets around to passing national legislation that is as bad -- or even worse -- than the EU's. Follow me @glynmoody on Twitter, Diaspora, or Mastodon. Permalink | Comments | Email This Story

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posted about 16 hours ago on techdirt
In the convoluted realm that has become copyright, licensing agreements, and SaaS-style everything, we've had something of a running series of posts that focus on the bewildering concept that we no longer own what we buy. Between movies simply being disappeared, features on gaming consoles being obliterated via firmware update, and entire eBook platforms simply ceasing to work, the benefits of handing over very real dollars have never been more fleeting. This has been ingrained to the point of public reaction to this sort of thing amounting to that of placid cattle being shown the slaughter room. So, when Electronic Arts alerted those that purchased its iOS Tetris game that, surprise, this game is just going to not work any longer soon, public outcry wasn't even on the menu. Players opening either game on their iOS devices are now greeted with a pop-up message that’s also included in the “What’s New” section of both Tetris Premium and Tetris Blitz’s listings in the iOS App Store warning them that the countdown on each title has officially begun: Hello Fans, We have had an amazing journey with you so far but sadly, it is time to say goodbye. As of April 21, 2020, EA’s Tetris® app will be retired, and will no longer be available to play. Kindly note that you will still be able to enjoy the game and use any existing in-game items until April 21, 2020. We hope you have gotten many hours of enjoyment out of this game and we appreciate your ongoing support. Thank you! Hey, thanks for buying our game and, great news, you'll get to play what you bought just a little while longer, mmkay bye! Gamers, at this point, are quite used to beloved games suddenly being unsupported after a few years, meaning that the game won't be updated, won't work on modern operating systems, and might not have an active online gamer platform when support runs out. What's less common is for the game to have been constructed in a way that is completely unplayable, full stop, when the publisher flicks a switch. So why is this happening in this case? Well, because EA doesn't actually own Tetris. It just licenses the title to publish games. And, The Tetris Company has entered into a new licensing agreement for exclusive mobile game publishing with a different company. Last year, The Tetris Company, Inc. and N3TWORK announced a multi-year agreement where N3TWORK will be the exclusive developer and publisher of new Tetris® games for mobile devices worldwide, excluding China. EA’s announcement that it will retire its Tetris®, Tetris® Premium and Tetris® Blitz games as of April 21 is a result of this agreement. The Tetris brand continuously aims to bring fans game experiences that are fresh, innovative and fun. We are excited about these new changes for Tetris on mobile and plan to share more news with fans very soon. All of which I imagine is lost on the average person who bought EA's Tetris games, thinking that buying them meant they owned them. Can you imagine asking the average gamer if they would have made that same purchase if they realized that their game might simply disappear and cease to work if the Tetris people decided on a new licensing agreement with a different publisher? This is a mess and it's probably time for consumer groups to look into some kind of consumer protection rules that would either prevent this sort of thing or, more likely, make notifying buyers that they aren't actually buying the product more prominent than some subsection paragraph buried in a EULA. Permalink | Comments | Email This Story

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posted about 20 hours ago on techdirt
Five years ago, an Idaho police department destroyed a woman's house to end a standoff with her dog. The Caldwell PD -- after having been given permission (along with a house key) to enter the home to see if a suspect was in the home -- decided this meant the Shaniz West had given them permission to fire grenade after tear gas grenade into the house before sending in the SWAT team to confront the family dog. Exhibit A: Shaniz West sued, stating that this 10-hour "standoff" that rendered her house uninhabitable for three months was a violation of her Fourth Amendment rights. The district court agreed, finding the officers being sued could be held accountable for destroying her home, rather than just using the house key she had given them. Unfortunately, the Ninth Circuit Court of Appeals disagreed and granted the officers qualified immunity. According to the Appeals Court [PDF], this was an appropriate use of police force, given the circumstances. Mainly it was that the circumstances were unique enough, the court could find no way to say this was unreasonable. Without controlling precedent, the officers were allowed to escape the consequences of their ridiculous, house-destroying actions. Here's the Court's summary, which sounds like it was written by a cop PR shop. The panel held that assuming the consent was voluntary and defendants exceeded the scope of the consent by shooting tear gas into the house, they were still entitled to qualified immunity. The panel held that given that defendants thought they had permission to enter plaintiff’s house to apprehend a dangerous, potentially armed, and suicidal felon barricaded inside, it was not obvious, in the absence of a controlling precedent, that defendants exceeded the scope of plaintiff’s consent by causing the tear gas canisters to enter the house in an attempt to flush the suspect out into the open. Officers Seevers and Winefield were therefore entitled to qualified immunity on this claim. "Causing tear gas canisters to enter the house." It's like the canisters were just hanging around outside and the SWAT team's reasonable appearance on the lawn gave the canisters permission to hurtle themselves through the nearest windows and doors. There was no suspect to flush out. The person they were seeking had vacated the residence before officers stopped Shaniz West and threatened her with arrest if she didn't "consent" to a search of her house. What West actually consented to was far different than what the officers ended up doing, as the dissent pointed out. The majority adopts an entirely implausible contrary reading of West’s consent, one a “typical reasonable person [would not] have understood by the exchange between the officer and the suspect.” Jimeno, 500 U.S. at 251. Because West “never expressed a limitation as to time, place within the house, or manner of entry,” the majority concludes that her consent that officers could “get inside” permitted a violent initial attack on her house with toxic objects. Maj. Op. at 13. In so concluding, the majority supposes that someone who permits law enforcement officers to “get inside [her] house” while handing over a key consents to the officers not entering the house but instead lobbing dangerous objects, such as tear gas canisters—or stones or bombs, for other examples—into the house from the outside. It further presupposes that, in providing consent to entry, a resident must preemptively forbid actions no one would guess are contemplated by the commonsense understanding of the articulated consent. That is not the law. What this court finds reasonable for officers (destroying a house) does not align with what any "reasonable" non-cop would willingly permit when consenting to a search of their residence. In concluding that the officers performed a search consistent with West’s consent, the majority does what no court has before—it holds that a “typical reasonable person” consenting to an entry to look for a suspect could be understood by a competent police officer as consenting to damage to his or her home so extreme that renders it uninhabitable for months. There is still no finding that destroying a house while performing a consensual search is a violation of rights. The Ninth punted on drawing the line following this case, leaving officers free to "cause canisters to enter" houses in the future when performing searches for suspects. The Institute for Justice wants some precedent set. It's asking the Supreme Court to rule on this issue. The petition [PDF] seeks a ruling that would prevent officers from dodging lawsuits from citizens rendered homeless by consensual searches. QUESTION PRESENTED Whether an officer who has consent to “get inside” a house but instead destroys it from the outside is entitled to qualified immunity in the absence of precisely factually on-point caselaw. It's a valid question. It's far more valid than the Ninth's conclusion: that consent to search is consent to destruction. Even given the circumstances of this case -- a potentially armed felon who was supposedly suicidal -- the officers had options they normally didn't have during warrant service: specifically, permission to enter the home and a key that unlocked the front and back doors. Instead of using the key to enter the house (or at least attempt to -- the front door also had a chain securing it, but it's not like a bunch of tear gas grenades were going to dislodge the chain), the cops decided to call in the SWAT team. They left the premises, met with the SWAT team, came up with a plan and did a couple of dry runs and three hours later, decided to start the "search." It wasn't until 4.5 hours later the key was even tried. It unlocked the back door, but redundantly because the glass had already been shattered by tear gas canisters, allowing officers to reach inside and unlock the door. As the petition points out, there's no reason to find precedent that directly aligns with law enforcement's actions here. It should have been plainly apparent to the officers that their actions were unreasonable. The dissent did not purport to find a “closely similar case[ ] to guide the clearly established law inquiry[.]” App. 27. Instead, it found no such case was necessary because any competent officer would have understood he could not lawfully destroy a house simply because he had consent to enter it. This should be obvious. If it were a car being searched, a person's consent to a search would not justify officers towing the vehicle to place away from the public and detonating it just because of the slim possibility something inside it might pose a threat to officers. Hopefully, the Supreme Court will take a look at this case, rather than decide it's up to the lower court to set a bunch of conflicting precedent -- or far more likely, continue kicking the QI can down the road. Giving officers permission to search your house should never mean giving them permission to leave you with no place to live. Permalink | Comments | Email This Story

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posted about 22 hours ago on techdirt
The accused leaker of CIA phone hacking tools -- the "Vault 7" collection released by Wikileaks in early 2017 -- is still awaiting trial. To pass the time, alleged leaker Joshua Schulte is suing the government for $50 billion and, apparently, generating a whole lot of evidence against himself. The criminal complaint against Schulte contained far more than accusations of leaking sensitive material. Searches performed on Schulte's devices also turned up 10,000 child porn images and a lot of copyrighted content Schulte was sharing from his own server. Stealing government secrets + child porn + copy infringement: that's the weirdness this case is. Schulte continues to make the worst case for himself. While some leakers have acted more like whistleblowers, making the public aware of hidden misconduct or civil rights abuses, Schulte has presented himself as a martyr for his own cause. This isn't helping his criminal case (or the civil lawsuit he's filed). After being jailed, Schulte continued to leak classified info from his jail cell, using contraband phones and his access to the evidence the government planned to use against him. The government pointed this out to the court in November 2018. A recent filing by the government (h/t Emptywheel) details Schulte's post-arrest efforts to continue leaking classified info to journalists -- including the use of his family members to contact journalists and set up new encrypted communications channels for him. Unfortunately for Schulte, the seizure of contraband from his cell has given the government a lot more evidence to work with, especially when it comes to proving his criminal intent. Schulte really wanted a white knight, but none arrived. Taking matters into his own hands (and ignoring the advice of his lawyer), Schulte appears to have engaged in one-man war against the federal government, armed with nothing but shovels. The letter [PDF] to the court details the contents of notebooks seized from Schulte's cell, as well as communications made to his family and members of the press. While under a protective order forbidding him from discussing the government's search warrants publicly, Schulte sent the warrant (along with several articles he had written) to a reporter. His desire to wage an "information war" against the government while behind bars was stymied by his inability to draft fellow combatants. Because he was incarcerated, the defendant enlisted his family to communicate with reporters and to post the defendant’s articles online, including on a public Facebook page (the “John Galt Facebook Page”). While the defendant’s family was able to post a version of the defendant’s articles on the John Galt Facebook Page, the articles apparently did not result in the swell of press attention for which the defendant hoped. Over the summer and into the fall of 2018, the defendant grew angrier at his detention, but also his family’s inability, and eventually unwillingness, to publish all of the defendant’s articles and the media’s apparent lack of interest in the defendant’s case. From there, Schulte went on to attempt to scrub his Gmail accounts of incriminating communications, and to create a number of new accounts for ProtonMail, Twitter, and Facebook so he could continue distributing classified info he knew or had access to. The letter describes four separate occasions Schulte revealed classified info to family members or the public. In total, the letter describes a pretty comprehensive case Schulte has built against himself, detailing everything from the deletion of evidence to the continuous generation of new evidence via Schulte's handwritten "information war" plans. There's also stuff in there that undermines the whistleblower narrative Schulte has tried to craft. On this page in the Red Notebook, the defendant states: “If govt doesnt pay me $50 billion in restitution & prosecute the criminals who lied to the judge and presented this bs case then I will visit every country in the world and bear witness to the treachery that is the USG. I will look to breakup diplomatic relationships, close embassies, and U.S. occupation across the world & finally reverse U.S. jingoism. If this is the way the U.S. govt treats one of their own, how do you think they treat allies?” This statement is obviously Intent Evidence—it shows not only that the defendant is growing increasingly frustrated, but, more importantly, that his frustration has risen to the point that he now—according to his own words—plans to destroy the United States’ relationships with its allies, leading to, for example, the shuttering of U.S. embassies in other nations. The "intent evidence" here sounds more like a personal vendetta than the dissemination of classified info for the good of the public. [T]he defendant recommends to U.S. intelligence agency employees to “send all your govt’s secrets here: WikiLeaks” until the U.S. government “honors” their service. There are also things like this, that show even more hubris than the above examples suggest. Here's Schulte stating he feels his family should be willing to put themselves at legal risk for him. The defendant states: “I text my dad from whatsapp & signal incessantly & finally got a response @ 1% battery. I said please put articles on drafts in gmail. Response: My lawyer advised me not to. Fucking incredible. Fucking. Incredible.” And here he is mocking the FBI. [T]he defendant also goes on to write that he designed his “own crypto – how better to fool bafoons like forensic examiners and the FBI then to have custom software that doesn’t fit into their 2-week class where they become forensic ‘experts.’” The defendant then provides classified details of specifics of his work at the CIA. The government's letter tells the court there's plenty of evidence it wishes to use against Schulte, a lot of it gleaned from the "information war" he tried to wage from the Metropolitan Correctional Center in Manhattan. [T]he MCC Notebooks and the Malware Article help to demonstrate a pattern of conduct that is highly probative of Schulte’s guilt of the WikiLeaks charges. In both instances, the defendant (1) grew infuriated with components of the U.S. government; (2) threatened to expose allegedly damaging information about the CIA to coerce the agency into acting as Schulte wished; and (3) used technologically sophisticated means to conceal his actions, using encrypted accounts and cellphones, and IP-masking techniques at the MCC and deleting logs and securely wiping removable media at the CIA. Not much of this sounds like whistleblowing. If there is something honorable or altruistic in Schulte's actions, it can't be found here. That's not saying it doesn't exist. The government is a notoriously unreliable narrator and this filing only covers the stuff prosecutors think will help prove their case. But Schulte's narration isn't that reliable either. And he still doesn't appear to realize that acting in your own interest isn't always the same thing as acting in your best interest. Permalink | Comments | Email This Story

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posted about 23 hours ago on techdirt
Buckle up, because here's a wild one. Over the weekend, a ton of people sent me a tweet from "The Sparrow Project" that many people took to mean that Rep. Devin Nunes -- the Congressional Representative who spent much of 2019 filing highly questionable SLAPP suits against news organizations, journalists, political operatives, critics, and, most famously, a satirical internet cow -- has issued a highly questionable subpoena for The Sparrow Project's private Twitter DMs. Welp. I just received a letter from Twitter's legal team notifying me that Devin Nunes' attorney Steven S. Biss has subpoenaed Twitter for my DMs. If any attorneys out there want to help me file a motion to quash I'll buy you a vegan doughnut. How's your Friday going? — The Sparrow Project (@sparrowmedia) January 25, 2020 However, while that tweet may have implied it was Nunes, it is not. The case merely involves Nunes' lawyer, Steven Biss, who is the lawyer in a separate case. But there are many oddities involved in this subpoena -- and Nunes' cases may be tangentially connected in a manner that seems to raise more questions about Biss' legal strategy. Before we go any further, however, I will say that the case that the subpoena comes from is a messy one. I am not going to go into all of the background here -- hopefully just enough to understand the nature of this subpoena -- but I will note that there are many people on both sides of this case who seem to feel fairly confident about what happened between two people, when the truth is only those two people know what really happened, so I will not take any position on the specific claims underlying the two cases at issue. There are also a bunch of people floating trollish conspiracy theories -- again, on both sides -- and if you want to waste a lot of time around a lot of nonsense, there are some rabbit holes to go down, most of which will frustrate and confuse you. I don't recommend that. The case stems from accusations that lawyer Jesselyn Radack, who has represented Ed Snowden and other whistleblowers, made regarding Trevor FitzGibbon, who ran a PR firm that represented Wikileaks, Chelsea Manning, The Intercept and some other well known organizations. In 2015, FitzGibbon's PR firm shut down following allegations of sexual harassment and assault. In 2018, after it was reported that no criminal charges would be brought against FitzGibbon, he (with Biss as his attorney) sued Radack, claiming she defamed him in saying that he sexually assaulted her. You can read the (redacted) amended complaint and follow the rest of the docket, but it gets pretty salacious and a lot of accusations are thrown back and forth and you don't really need to know those details to understand the issue we're discussing here, so I won't point you directly to them. What matters in this instance is that after a fairly contentious process, the two parties settled in May of last year. It is also at least worth noting that the court held Radack in contempt, which highlights at least some of the contentiousness of the proceedings. Separately, because the original complaint (which was later sealed in part because of this) in the original case apparently included somewhat revealing photos that FitzGibbon claimed Radack had sent him (part of his effort to show whatever relationship they had was consensual), Radack separately sued FitzGibbon, claiming that his filing violated Virginia's revenge porn law. A month after FitzGibbon's first case against Radack was settled, he sued Radack again, claiming that (among other things) she had breached the settlement agreement from the original case, and tacking on new defamation claims. The original settlement agreement appears to have included clauses saying that they wouldn't talk about each other on social media, and also that they wouldn't "direct, request, encourage, entice, procure or otherwise cause any third party..." to post on social media about the other. In the new case, FitzGibbon (again using Biss as his lawyer), alleges that Radack did use social media to talk about FitzGibbon, and suggests that since many others, including followers of Radack, have tweeted about him, it violates the clause not to encourage (etc.) others to do so. This starts with Radack's very first tweet after settling the case, in which she (as per the settlement) posted a short tweet noting that the original case had been settled and she wanted to "retract and withdraw every allegation and statement I have ever made against Trevor Fitzgibbon." Some supporters of Radack responded to that tweet with statements against FitzGibbon, which the lawsuit argues breaches the settlement agreement. It also highlights a bunch of other tweets by Radack, some of which it claims are defamatory, even though they seem quite general, don't mention FitzGibbon, and could easily be about someone else entirely. Just a few examples of tweets called out in this follow up lawsuit that seem like a huge stretch: It seems pretty difficult to argue that those either breach the agreement or that they are defamatory towards FitzGibbon. The complaint does go on to assert "common law conspiracy" claims because other accounts started tweeting things about FitzGibbon that might reach the level of defamation. I won't repost them here, but those tweets do make direct claims about FitzGibbon, and if they are false, and were posted with knowledge of their falsity, might possibly qualify as defamation. Of course, the knowledge of their falsity or making the statements with "reckless disregard for the truth" (the standard for actual malice necessary to make a defamation claim) seem like a pretty high bar that would be difficult to reach. Radack has asked the judge to dismiss much of the case on jurisdictional grounds and for failure to state a claim (basically saying that even if everything claimed is true, it still doesn't violate the law). Frankly, I find that her argument for the 12(b)(6) failure to state a claim is pretty convincing, and FitzGibbon/Biss' opposition motion to be pretty weak. It spends a lot of time arguing why there are some cases where opinion can be defamatory, and then highlights how some of the tweets from other people appear to be defamatory, but makes little effort to show how that makes her statements defamatory. And that finally brings us around to the tweet at the top that is the reason for this post. If Biss could show that Radack did, in fact, communicate with others to make public statements about FitzGibbon, then at the very least you could argue that it was a breach of the settlement agreement. And, thus, one could make an argument that there are some reasonable situations in which such communications could be subpoenaed as part of the discovery process, to determine whether or not Radack had, in fact, breached the contract, and somehow encouraged others to say things publicly about FitzGibbon. But, that possibility of situations existing where it might make sense to seek discovery of such communications is about as far as I'll go in giving Biss any credit here. Because almost every other part of what's been made public so far is problematic. First of all, the subpoena is to Twitter, and not to the individuals involved in any communications: That's a problem on multiple levels, including that the Stored Communications Act literally forbids this kind of subpoena. While most people know of the SCA as it concerns government requests for communications, it also bars internet service providers from revealing content information to private actors in civil suits. So, even if there were legit reasons to seek these communications, sending a subpoena to Twitter is not how this should be done. But the more concerning part is that the subpoena targets the communications of 21 different Twitter accounts, and many of them claim to have no connection at all to Radack, and at least two of the accounts in the subpoena that have no known connection to Radack are connected to Nunes' lawsuits. Specifically, the subpoena seeks communications from the now famous @DevinCow account, as well as political strategist @AdamParkhomenko, who was subpoenaed in one of the Nunes' cases, and who made some news by filing quite a motion to quash in that lawsuit. Biss and Fitzgibbon's abusive targeting of Radack is compounded by their abuse of the discovery process which they've turned into a dragnet of influencers with no connection to Radack like @DevinCow, @RVAwonk, @AdamParkhomenko, @jimmysllama and @charliearchy (redactions by me). pic.twitter.com/nZPC8Gl223 — The Sparrow Project (@sparrowmedia) January 25, 2020 So.... what the hell are they doing in this subpoena on a totally unrelated lawsuit? As far as I can tell in going through the dockets of both cases: absolutely nothing. Perhaps there's some reason for it somewhere, but in looking through everything I can find no clear connection. Radack and Parkhomenko, for example, seemed to only start communicating after she alerted Parkhomenko to the existence of what appears to be this same subpoena on Christmas. Radack's tweet at the time went mostly unnoticed, though Adam did respond over a week later to her. As for the DevinCow account, there appears to be absolutely no obvious or public connection between Radack and DevinCow, and no reason to include that account here. Indeed, in responding to a question from myself, DevinCow told me that it has "no connection" to Radack and is "not even sure what is behind all of this craziness." Based on that, it's extremely unclear why those two accounts (and possibly others) are included in the subpoena. And, given that the identity of DevinCow, in particular, is so important in Nunes' case, you can see how the inclusion of that account and some others may raise some eyebrows about just what is going on here. So, while many people may have misinterpreted the original Sparrow Project tweet to suggest it involved a Nunes case, the subpoena in question is technically from a totally different case, not officially involving Nunes. It's just the same lawyer for both cases. But, it should raise some serious questions as to why the (mis-targeted) subpoena in the Radack case is being used to target communications that appear unrelated to the Radack case, but potentially of significant interest to a totally different case involving the same lawyer. Permalink | Comments | Email This Story

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We've written several times before about the constitutional challenge to FOSTA in the case Woodhull Freedom Foundation, et al. v. U.S. That challenge hit a roadblock when the district court dismissed that lawsuit for lack of standing by the plaintiffs. Per the district court, the plaintiffs had not been hurt by the statute, nor were they likely to be hurt by it, and thus they had no right to challenge it in the courts. The plaintiffs appealed, and we supported the appeal with an amicus brief. Back in September I attended the oral argument in the appeal and came away cautiously optimistic that the DC Circuit would see the matter differently. While the way the DOJ read the statute would mean that the plaintiffs had nothing to fear, what the court honed in on was that it was not the only plausible way to read the statute. And with these other plausible reads the plaintiffs would indeed have something to worry about. On Friday the court issued its ruling, and, as I'd suspected/hoped, it reversed the dismissal of the case by finding standing for at least two of the plaintiffs, which the court decided was enough for purposes of reviving the litigation. [p. 12]. For plaintiffs like Eric Koszyk, a licensed massage therapist whose ability to earn a living was harmed when Craigslist prohibited ads for therapeutic services in the wake of FOSTA, [p. 9], the court found they had standing based on the issue of "redressability." In other words, while the direct harm them was due to actions taken by a third party (in Koszyk's case when Craigslist prevented him from posting any more of the ads he had posted for years and depended on to find his clientele), the court found that the harm was really attributable to FOSTA and thus likely to be remediated if the law were found unconstitutional. [p. 17-18]. Meanwhile, for plaintiffs like Alex Andrews, who runs a website called "Rate That Rescue," "which is a sex worker-led, ratings and review website that provides a resource for sex workers to learn more about the various organizations that provide services for them," [p. 8-9], the ambiguous language of the statute put their constitutionally-protected activity in jeopardy. Andrews has established an Article III injury-in-fact because she has alleged “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Her alleged conduct is “arguably affected with a constitutional interest,” because Andrews’ intended future conduct involves speech. Andrews operates a website that allows sex workers to share information. Her conduct is “arguably proscribed” by FOSTA because it is a crime to own, manage, or operate an “interactive computer service[]” with the intent to “promote or facilitate the prostitution of another person,” 18 U.S.C. § 2421A(a). FOSTA does not define “promote” or “facilitate,” nor does it specify what constitutes “prostitution,” a term undefined by federal law. Nor are these terms limited by a string of adjacent verbs (such as advertises, distributes, or solicits) that would convey “a transactional connotation” that might narrow the statute’s reach. [p. 13]. These terms, “promote” and “facilitate,” the court continued, “are susceptible of multiple and wide-ranging meanings.” [p. 13] Because the verbs “promote” and “facilitate” are disjunctive, FOSTA arguably proscribes conduct that facilitates prostitution. The common meaning of facilitate is “‘to make easier’ or less difficult, or to assist or aid.” […] Alternatively, the term “facilitate” could be interpreted “as a synonym for ‘terms like ‘aid,’ ‘abet,’ and ‘assist,’” in which case the term’s meaning would be limited by the background law of aiding and abetting. Even reading the term “facilitate” narrowly, Andrews has adequately alleged her intention to engage in a course of conduct arguably proscribed by FOSTA. [p. 13-14]. And that wasn't all. Back when amicus briefs were filed in support of the government, we noticed a strange one submitted by twenty-one state attorney generals. The problem was, for the government to win the appeal and keep the constitutional challenge dismissed, it needed to convince the appeals court that the plaintiffs had not been hurt and would not be hurt. But then the state attorney generals filed their brief, which proudly made the point that they just hadn't used the power FOSTA granted them to hurt people like the plaintiffs yet. The court noticed that brief, and how it served to bolster the plaintiffs' standing argument: Furthermore, Section 2421A provides a private right of action for any person injured by an aggravated violation. 18 U.S.C. § 2421A(c). The Supreme Court has acknowledged that “[t]he credibility of [a] threat is bolstered” where “the universe of potential complainants is not restricted to state officials who are constrained by explicit guidelines or ethical obligations.” And Congress amended Section 230 to allow prosecutions under state law if the conduct underlying the charge would constitute a violation of Section 2421A. Twenty-one states emphasize that “the State need not wait for the Department of Justice to prosecute traffickers operating in the State.” Amicus Br. for the State of Texas, et al., 9. This amicus brief also cites pending legislation in Texas that would enact a local FOSTA. Id. at 9 n.3. These states have not disavowed any intention to prosecute individuals like Andrews. [p. 16-17] All in all, this decision is good news, but it doesn't end the matter. With standing now found, the case has been revived and remanded back to the district court for further proceedings to determine FOSTA's constitutionality. One note of caution for those hoping for such a result, however, is that one of the three judges on the panel, Judge Katsas, while agreeing with the ultimate finding that the plaintiffs did indeed have standing, articulated some reservations about how that standing was found. To him FOSTA's language simply wasn't quite as vague and all-encompassing as the plaintiffs claimed: Properly construed, FOSTA does not arguably cover the advocacy, education, assistance, or archiving done by plaintiffs Woodhull Freedom Foundation, Human Rights Watch, and Internet Archive. Nor does it arguably cover Andrews’s website insofar as it provides information about “support and rescue” organizations that either discourage prostitution altogether or seek to mitigate its harmfulness. But as my colleagues explain, the website also provides prostitutes with information about “online payment processors like PayPal,” which directly assists the exchange of sex for money. In context, such postings might support an inference that Andrews has the requisite intent to “promote or facilitate the prostitution” of someone besides herself. Because Andrews thus arguably engages in activities proscribed by FOSTA, I agree with my colleagues that she has standing to challenge it. [concurrence p. 2-3] So, although this decision is a win, there will be lots more for the plaintiffs to fight about in order to get FOSTA finally set aside. Permalink | Comments | Email This Story

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The Lean methodology is all about creating more value from fewer resources, which is why many businesses have integrated it into their workflows. The Lean Six Sigma Expert Training Bundle will expose you to Lean's concepts, so you can optimize processes, increase quality, and drive maximum value in any business. You'll learn how to identify common types of waste in organizations, how to work with Minitab to perform statistical analysis, how to manage team dynamics, and more. It's on sale for $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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As you may recall, last year, Presidential candidate and current Congressional Rep. Tulsi Gabbard filed a laughably silly lawsuit against Google. We pointed out at the time that it had no chance at all, and echoed, quite directly, the debunked claims that some conservatives make about how Google censors them... even though Gabbard is not a conservative politician. It still threw the same kitchen sink of dumb legal arguments into the complaint, arguing that Google was a "state actor" (it's not), and that Google's moderation choices were a violation of California's civil rights law, the Unruh Act. What got much less attention was that in September, Gabbard's lawyers filed an amended complaint that dropped all of the civil rights and Lanham Act claims and tried to press on solely with the 1st Amendment (and related 14th Amendment) claims. These will fail spectacularly. Google is not a state actor. There is no 1st Amendment claim here and any attempt to make one is a sign of pure silliness. Of course, as that lawsuit is falling apart, it appears that Gabbard has decided to file a new vexatious lawsuit to get back in the headlines. This time she's sued Hillary Clinton for defamation. The actual complaint is really bad. It's laughable, and the lawyers who signed their names to it -- Brian Dunne, Dan Terzian, and David Hecht, from Pierce Bainbridge -- should be embarrassed. Of course, Dunne and Terzian also filed the silly case against Google, so I'm guessing they don't much care about their own reputation as lawyers. At issue, Hillary Clinton made some -- admittedly stupid -- comments about Gabbard on a podcast last fall, saying that the Russians supported Gabbard and that she might run as a 3rd party candidate. PLOUFFE: [Trump is] going to try to drive people not to vote for him, but to say you can’t vote for them either... CLINTON: They’re also going to do third party again. And I’m not making any predictions, but I think they’ve got their eye on somebody [Gabbard] who is currently in the Democratic primary and are grooming her to be the third-party candidate. She’s the favorite of the Russians, they have a bunch of sites and bots and other ways of supporting her so far. And that’s assuming [Green Party 2016 candidate] Jill Stein will give it up, which she might not, because she’s also a Russian asset. Again, these comments are silly, bordering on conspiracy theories in the same vein that our current President likes to buy into all too often. But it's not even remotely defamatory. At no point does she make any false statements of fact about Gabbard. First off, the 1st Amendment and the courts' interpretation of it gives great leeway to political speech, considering that's kind of the whole point behind the 1st Amendment. As such, the courts will almost certainly take this as standard overheated political rhetoric. Second, breaking down what Clinton said, it makes no factual claims about Gabbard herself -- but rather about "the Russians." She may be wrong about what the Russians are doing, but that's not defamatory towards Gabbard. Whether or not the Russians do favor Gabbard, or whether or not the Russians would like her to run as a 3rd party candidate, or whether or not they have a bunch of sites and bots promoting her -- that's all about the Russians. Even the "Russian asset" comment (which Clinton never directly states about Gabbard, but implies by saying it is "also" true of 2016 third party candidate Jill Stein), is not defamatory. A Russian asset doesn't mean someone who is purposefully doing the bidding of the Russian government. That would be a Russian agent. Simply saying someone is an asset to the Russians, means that they're valuable in some way to the Russians, and not that the Russians' control them. And, as such, it's clearly a statement of opinion. Clinton can argue that the Russians benefit from a Gabbard campaign -- and other people (including Gabbard, if she chose) could argue the other side. And that is the nature of political debate. But it is not defamatory to state your opinion, no matter how silly it might be. But, of course, it appears that Gabbard and her lawyers at Pierce Bainbridge are not actually interested in righting any legal wrongs with these lawsuits. They just are ways to rile up a base and get her name back in the headlines. Even David Frum at the Atlantic has noted that these are lawsuits for attention from a Presidential candidate who is not going to win anything. But then, much of Gabbard’s complaint reads less like a legal argument than a stump speech. It is not easy to imagine that any federal judge would look with much favor on the relentless boasting and self-promotion in a lawsuit that opens: 1. Tulsi Gabbard has lived her life with one guiding principle: putting the needs of others before her own. That’s why she joined the Army National Guard. That is why she campaigned for and was elected to the United States House of Representatives. And that is why she is running for President. The 14-page brief crams in 13 references to Gabbard’s service in the Army National Guard. Rather than being structured to convince a judge, the brief wishes to invite belief in an alternative universe where Hillary Clinton is running for president in 2020—and where Gabbard somehow presents an important obstacle to Clinton’s ambitions. This is not unlike the lawsuit against Google, which excited a clueless base who insisted to us that Gabbard must have a strong case and Google would be taken down by it. Yet, of course, Gabbard's own amended complaint, in which she dropped all of the claims that people kept telling me were easy wins for her, made no news at all. This seems to be an all too common path taken by some politicians these days. Rile up your base by filing frivolous lawsuits. This is why we actually need stronger anti-SLAPP laws in every state, plus a federal anti-SLAPP law. It is, of course, notable, that Gabbard's suit against Clinton was filed in the Southern District of New York, and NY's anti-SLAPP law is incredibly weak and is unlikely to apply in this instance (it only applies to statements made while petitioning the government). Permalink | Comments | Email This Story

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We've noted for a while that the "race to 5G" is largely just the byproduct of telecom lobbyists hoping to spike lagging smartphone and network hardware sales. Yes, 5G is important in that it will provide faster, more resilient networks when it's finally deployed at scale years from now. But the society-altering impacts of the technology are extremely over-hyped, international efforts to deploy the faster wireless standard aren't really a race, and even if it were, our broadband maps are so terrible (by design) it would be impossible to actually determine who won. The idea that we're "racing China to 5G," and need to mindlessly pander to U.S. telecom giants to win said race, has also become a mainstay in tech policy circles and tech coverage for two or three years now. We're at the point where 5G (like the blockchain or AI) now exists as a sort of policy pixie dust to be sprinkled around generously by lobbyists and K Street beggars looking to wow luddite lawmakers, even if the underlying arguments often make no coherent sense. When 5G is fused with overheated national security concerns, it becomes even more incoherent. Enter former Representative Mike Rogers, who last week announced he was heading a new 501(c)4 group dubbed 5G Action Now. 5G Action Now frames itself as an objective third party outfit that is just apparently really excited about 5G, insisting its goal is to "educate members of Congress and the American people" to better understand the "race to 5G": "5G Action Now was founded to establish the United States as the worldwide leader in 5G. Our goal is to elevate the conversation regarding American national security and the economic benefits of winning the 5G innovation and deployment battle against China. 5G will spur economic growth in rural America, create an environment for technological expansion, and put the U.S. on strong national security footing for generations to come." Mike's bio around the internet usually reveals how he's also a "security advisor" for AT&T, though oddly his bio over at the 5G Action Now website excludes this fact. The ambiguous venture appears to have numerous telecom backers, including a coalition of European and Canadian satellite companies looking for all the usual fare: weakened regulatory oversight, more subsidies, and a bigger slice of the publicly-owned airwaves to make a profit off of. It's more of a "race to government protection" or a "race to fatter revenues" than any kind of race to meaningful 5G domination or consumer benefit. The group's website is filled with rhetoric about how 5G is a "battle with China," hinting at some immense unforeseeable calamity should the Chinese government deploy 5G quickly to human beings you'll never meet, half a world away: While the US technically "won" the race to 4G by being first to deploy it, it didn't really wind up meaning all that much. U.S. consumers pay some of the highest prices for wireless service in the developed world, for 4G services that are routinely ranked as some of the slowest in the OECD. Thanks to regulatory capture, corruption, and mindless M&A mania (like the looming Sprint T-Mobile merger), it's a problem that's not going away anytime soon. 5G is not, contrary to what you'll be told by industry and stenographing journalists and evangelists, some mystical panacea. There's a reason AT&T, Verizon, and T-Mobile are fighting efforts to adequately map 5G, and have routinely over-inflated 5G availability claims overall. The "race" rhetoric is largely an illusion created by companies eager to do the bare minimum in exchange for as many subsidies, regulatory favors and tax breaks they can grab. This mindless regulatory capture has resulted in a US Telecom sector that routinely ranks in the middle of the pack in every metric that matters. While 5G will be a good thing when deployed at scale, it's foolish to think the new wireless technical standard will address the deeper rot that plagues the sector. We didn't win the race to 4G, and we're unlikely to win the "race to 5G," either. Why? Because our telecom policy involves effectively pandering to every whim of mono/duopolists, then standing around with a dumb look on our faces as prices soar, coverage lags, and Kafka-esque customer service headlines become the norm. The race rhetoric serves one larger purpose: it ensures that nobody pauses to think about policy considerations like prices, open networks, consumer rights, or even coverage. It results in a country that can't apparently repair its bridges or feed the public, but can easily throw another $1.5 billion at telecom giants that are in absolutely no need of subsidization or more tax breaks. At some point, you'd think we'd learn to stop throwing billions of unaccountable dollars at companies with a thirty-year track record of failing repeatedly to live up to their end of the bargain. Permalink | Comments | Email This Story

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This week, our first place winner on the insightful side is an anonymous commenter who responded to a suggestion about rules for returning seized money with a simpler idea for reform: There should be a law that money and property cannot be seized without charges being brought, and cannot be kept without a conviction. In second place, we've got Stephen T. Stone with an evergreen comment that can be referred to every time there is another attack on Section 230: Quick reminders vis-á-vis 47 U.S.C. § 230: Without 230, a vast portion of the Internet wouldn’t even exist. 230 puts liability where it belongs: on the people responsible for the speech. 230 doesn't protect a platform from liability in re: any speech for which the platform is directly responsible. 230 has no “neutrality” provision. 230 helps facilitate the sharing of speech on third party platforms; the First Amendment gives you the right to share that speech in the first place. For editor's choice on the insightful side, we've got a pair of complementary comments about online speech. First, it's an anonymous commenter with a reminder that having your odious speech privately moderated is not a free speech issue: Except that isn't happening. If it were, it would still 1) not be censorship, and 2) within their rights to do so. Funny how when the right-ish side controlled most media and corporations, there wasn't a problem. Now, if you are even center, or just not extreme-right enough, you are a leftist suppressing the poor oppressed right. Even when it isn't happening. If you mean people who are racist, sexist, and advocate violence, yeah, they tend to get moderated. Sorry if that is your "unpopular political view". People all over the spectrum get moderated for shit, sometimes sensibly, and sometimes incorrectly. "X censors the right" is just another "War on Christmas". Bunch of whiny, spoilt snowflakes. To go along with that, it's Stephen T. Stone again with the point that, on the other hand, even odious speech is protected from legal intervention and DMCA abuse: Whoever filed that DMCA claim used a government-backed legal claim as an attempt to censor speech. I don’t care if the person being censored is a damned White supremacist; they don’t deserve to have their speech silenced by way of a bullshit copyright claim. Over on the funny side, our winners are both irresistible quips about the bizarre story of Mohammed bin Salman apparently hacking Jeff Bezos' phone. First place comes from an anonymous commenter: New phone. Who dis autocratic ruler? And Who Cares offered up the second place winner: The world is really unfair. You need to be rich and powerful to get scammed by a real prince while I, a mere average Jane/Joe, only get these fake Nigerian princes. For editor's choice on the funny side, we start out with an anonymous comment about flawed facial recognition technology: But we tested it... We loaded it with the headshots of all 20 white males in the office, and it's able to recognize them consistently... so that means it should work for everyone everywhere, amirite? And finally, it's another anonymous commenter responding to someone else who, also anonymously, suggested people make their own encryption technology because Apple's encryption "isn't really useful anyway": Nice try Bill That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago This week in 2015, newly released documents from the Snowden leak revealed how the UK's GCHG collected emails from journalists and used compromised hardware to get data from iPhones, and how the NSA harvested data from other surveillance agencies. We also learned more about the DEA's role in the surveillance world, while the FBI was touting another of its own manufactured-then-foiled terror plots as evidence that the PATRIOT Act should be renewed. Meanwhile, a European Parliament report called for wide-ranging copyright reform that was actually good, a court soundly rejected the attempt by Omega to abuse copyright to stop Costco selling its watches, and Cory Doctorow rejoined the EFF to lead a project to eradicate DRM. Also, James Bond entered the public domain in Canada, which is worth highlighting because we came up with a darn good headline if I do say so myself. Ten Years Ago This week in 2010, the US was trying to strongarm Costa Rica into adopting draconian IP laws by blocking sugar from the US market, Italian lawmakers were pushing their own draconian provision to require government authorization for all video uploads, Oxford University made the bizarre decision to ban students from using Spotify, and EU trade negotiators were calling Canada's public comment period on copyright law "a tactic to confuse". BPI was insisting that UK ISPs were overstating the cost of a three strikes program, and the IFPI was loudly complaining about piracy in its annual report that conveniently omitted its own study showing file sharers also buy lots. ACTA secrecy was in full swing, with bloggers getting kicked out of consultations in Mexico and the UK government telling MPs they couldn't see the details. And in one better-than-nothing-I-guess development, the judge who oversaw the Jammie Thomas-Rasset case reduced the completely insane damages of $80,000 per song to the less astonishing (but still arbitrary) figure of $2,250 per song. Fifteen Years Ago This week in 2005, radio broadcasters were gearing up to be the newest entrants in the already overcrowded world of music download stores, TV broadcasters were trying to come up with ways to compete with DVRs, and Sony's Ken Kutaragi surprisingly admitted that DRM held up the company's innovation. The "war on file sharing" nabbed its first prisoners in the form of two men who plead guilty to "conspiracy to commit felony copyright infringement", while one state senator in California was promoting the idea that developers of file-sharing programs should be jailed. Permalink | Comments | Email This Story

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Bans of facial recognition tech are popping up across the United States. Facial recognition tech use by law enforcement is currently banned in the state of California and a few cities in Massachusetts have blocked local government agencies from deploying the tech. Given the tech's relative inability to do its job, along with a host of other concerns including built-in biases that make it far more likely minorities will suffer the effects of false positives, lawmakers are finally putting the brakes on approving facial recognition use by government agencies. A white paper leaked to Euractiv appears to indicate the biggest ban so far is under consideration in Europe -- one that would affect most of the continent. The European Commission is considering measures to impose a temporary ban on facial recognition technologies used by both public and private actors, according to a draft white paper on Artificial Intelligence obtained by EURACTIV. If implemented, the plans could throw current AI projects off course in some EU countries, including Germany’s wish to roll out automatic facial recognition at 134 railway stations and 14 airports. France also has plans to establish a legal framework permitting video surveillance systems to be embedded with facial recognition technologies. Noting that the GDPR requires certain information disclosures by companies and agencies deploying the tech, the white paper [PDF] suggests going live with facial recognition tech might be unworkable, given that every person passing by an AI-enabled cam would have to consent to data collection. It suggests a moratorium might be the best solution until all the regulatory kinks can be worked out. Building on these existing provisions, the future regulatory framework could go further and include a time-limited ban on the use of facial recognition technology in public spaces. This would mean that the use of facial recognition technology by private or public actors in public spaces would be prohibited for a definite period (e.g. 3-5 years) during which a sound methodology for assessing the impacts of this technology and possible risk management measures could be identified and developed. That's just one of the five options being considered by the European Commission. Unfortunately, it doesn't appear to be one of its favorites. The paper says the most likely approach the Commission will take is a combination of options 3, 4, and 5. The ban is option 2. But the GDPR definitely causes problems for the rollout of facial recognition tech in public places -- something the government agencies itching to deploy it don't appear to have considered seriously. It's pretty much unworkable unless the governments rolling these out are going to claim that being in a public place waives GDPR protections. The desire to subject citizens to biometric collections may result in a rewrite of the GDPR or a blanket exception for collections in public places. This will only make a bad law worse. But overall, the paper makes it clear the tech will be subject to tight regulation and much more oversight than we've seen deployed in the United States. Amendments to safety and liability laws are being considered that would allow tech companies to be held responsible for data breaches or misuse of collected biometric information. There would also be some sort of "trusted vendor" program put in place that would push companies to meet certain standards before they can be considered for government applications. The ban is a long shot but it's still in the running. Given the number of changes that may need to be made to make facial recognition tech comply with existing European privacy laws, a temporary moratorium might be the best call to make. Clearly, the legal atmosphere in Europe isn't exactly welcoming for new data collection tech. But the narrative that more surveillance = safer countries will always have powerful proponents, which may override the privacy concerns of millions of European citizens and subject them to mass surveillance. Permalink | Comments | Email This Story

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Here's a quick reminder that we're running a Gaming Like It's 1924 game jam, asking people to come up with both digital and analog games using newly public domain works from 1924. While the US spent decades not allowing any new works into the public domain, that changed last year (finally!), and now we're slowly getting works into the public domain drip by drip. But what good is a public domain if it's not used to inspire new creative works? So, as we did last year, we're running this contest for the month of January. All the rules are at the link above, but there are lots of great tools and templates out there for anyone wanting to try their hand at creating something. As always, Duke's Center for the Study of the Public Domain has a great list highlighting some newly public domain works, and there are some concepts and ideas in there that could be turned into really great games -- like E.M. Forster's A Passage to India or Hugh Lofting's Doctor Doolittle's Circus. And, of course, I remain curious if anyone will make a game out of George Gershwin's famed song "Rhapsody in Blue," considering that his family is upset about the whole concept of the public domain, and fought against it for years. Anyway, here's a chance to have fun and be creative. You don't need to be a game designer. You don't have to come up with something super polished. Just experiment a little and see if you come up with something cool. Permalink | Comments | Email This Story

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We've long had discussions about how wide open for abuse and error YouTube's copyright and demonetization practices are. Between the hamfisted method by which the accused is treated as guilty from the get go, to the impossibility of doing large-scale policing like this in a way that's even moderately good, to the avenue for abuse that all of this creates, the fact is that YouTube's stance on copyright is a mess. The end result of all of this is that creators on YouTube operate in constant peril of having their accounts suspended or video revenues taken by others with the recourse for fraud and error being convoluted and lengthy. For a site that is in the business of content creation, that's a real problem. And it's a problem that can get quite ridiculous, as evidenced by one recent streamer who had two videos demonetized over claims by a third party that she infringed its copyrights... on the numbers "36" and "50." did you guys know you can copyright the number 36 pic.twitter.com/dnja297R73 — Anne Munition (@AnneMunition) January 24, 2020 by the way, also got copyright claims for the number 50 lmao pic.twitter.com/MhWcMD9l8i — Anne Munition (@AnneMunition) January 24, 2020 Now, if you're wondering who in the world is claiming trademarks on these two random numbers, it appears to be a company in the YouTube content creation business as well. Why they think they own the copyright on those two numbers and can use them to siphon the income of innocent YouTube streamers is anybody's guess. The claim, made by media company Fullscreen, was simply over the number “36.” There wasn’t anything else to do with what media they were trying to protect, or any timestamps, just that the number “36” was not AnneMunition’s property. Fullscreen describe themselves as a “social content company for talent and brands” on their company website. They are owned by Otter Media, a subsidiary of WarnerMedia, who doesn’t hold the license for The Witcher 3, or any trademarks related to the number “36.” This is problematic for AnneMunition’s YouTube channel, because while claims are active, Fullscreen takes all monetization for the video. While the videos are over two years old, with both having very little views, they still leave a stain on her YouTube record. Now, I fully expect that YouTube will get this corrected fairly quickly, as there is nearly zero chance that there is anything remotely valid about this copyright claim. But that really isn't the point. For YouTube's system and process to so clearly favor the accuser, particularly given how much error and abuse there is in all of this, is not sustainable. At some point, content creators will simply have had enough and go somewhere else. That might be far off on the horizon, but it's going to come eventually if some kind of change isn't made on YouTube's part. Permalink | Comments | Email This Story

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It's kind of incredible that Devin Nunes' first frivolous, censorial lawsuit is still going on -- but it is. This is the one against two satirical Twitter accounts that made fun of Nunes, as well as political strategist Liz Mair and Twitter the company itself. Twitter had tried to get the case dismissed on jurisdictional grounds, saying the case belonged in California, but that failed. Now Twitter has played the next obvious card: saying that Section 230 of the CDA prevents Nunes from suing it over the satirical accounts. Tragically, the Fresno Bee has not posted the actual legal filings, and they're in a state court that does not make them easily accessible to the public, so I don't have the full filing yet. Update: The filing is here and embedded below. However, from the Fresno Bee's account, it appears that Twitter is making a pretty typical CDA 230 argument: “Congress granted providers of online platforms like Twitter broad immunity from claims that seek to hold them liable for harms caused by defamatory or otherwise harmful content that appeared on the provider’s platform but were created by third parties,” the motion to dismiss reads. “(The law) protects such providers not only from liability but also from being subjected to the burdens of discovery or other aspects of litigation.” The federal law referenced specifically states that no providers of an “interactive computer service” should be treated as “the publisher or speaker” of things said by a third party on their platform. The filing highlights that the negligence claim against Twitter is really just an attempt to route around 230: “The sole claim (Nunes) asserts against Twitter — for negligence — rests entirely on the theory that Twitter did not prevent third parties from posting the statements on the Twitter platform and/or did not do enough to remove the statements after they were posted,” Twitter’s new motion reads. If the judge in the case actually understands Section 230, this should be an easy dismissal for Twitter. However, to date, the judge has made a series of perplexing decisions that seem to go against most understanding on other laws. That doesn't mean he won't eventually dismiss the case, but it might make folks worry that this judge is more inclined than he should be to let the case move forward for the time being. Of course, assuming the judge actually does dismiss the claims against Twitter on 230 grounds, I fully expect, Rep. Devin Nunes to join the chorus of clueless elected officials seeking to end Section 230. Permalink | Comments | Email This Story

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The New York Times has noticed a company with the word "smile" in its name really isn't all that friendly. Nearly 2 years ago, SmileDirectClub sent legal threats to Gizmodo after a post discussing the potential drawbacks of getting your teeth fixed over the internet was published under the title "You Could Fuck Up Your Mouth With SmileDirectClub." Nothing about the article was false. Not even the title. SmileDirectClub sells teeth-straightening devices over the internet. Most teeth-straightening devices are provided by orthodontists after x-rays and in-person examinations. SmileDirect is, well, more direct, claiming it can provide the right dental appliance without all the in-person stuff by having customers send in a mold of their teeth or by visiting a "Smile Shop" to have their mouth and teeth scanned. The potential to have things go wrong -- especially when your only consultation during the teeth-straightening process is online chats with SmileDirect's dental staff -- is far from nonexistent. Appliances like these can cause more problems rather than fixing the one they were purchased for. All of this was covered in the article and everything said about SmileDirect's business model was truthful. This didn't stop SmileDirect's legal reps from filing a defamation lawsuit in defamation lawsuit-friendly (pre-anti-SLAPP law) Tennessee. SmileDirect said all sorts of ridiculous things about clickbait and Peter Thiel's takedown of Gawker, but really didn't make any actionable libel allegations. That SmileDirect voluntarily dismissed its lawsuit less than a week after it filed it as good an endorsement as any for the stupid arguments in its complaint. Anyway, the NYT is on the case now that more people are unhappy with their dental appliances and SmileDirect is more forceful in preventing unhappy people from complaining about its products and services. Here's how SmileDirect conducts business with its end users. No x-ray or dental examination is performed but customers are required to sign a consent form saying that they did have one performed before purchasing SmileDirectClub's dental device. This removes some of the company's liability. If the customer didn't actually get this done, it can't hold SmileDirect responsible for problems that might have been caught with a real exam. Since the company appears to target people who want to avoid dental exams and save money on dental appliances, plenty of customers aren't being honest when they check that first consent box. Then the form gets a whole lot darker. The form also states that they cannot sue the company for any reason. Arbitration: the best friend of every questionable company. And there's more. The company offers a very limited warranty that's tied to a very big gag order. SmileDirectClub offers refunds within 30 days after the aligners arrive. Anything after that is considered outside the company’s official refund policy and comes with the nondisclosure provision, which it said it began using in 2016. If your mouth does get fucked up by a SmileDirect product, you can't tell anyone about it. Refunds past the 30-day mark are handed out with restrictions that help the company keep its online reputation as squeaky-clean as possible. When some... customers requested refunds, SmileDirectClub asked them to sign the confidentiality provision. The agreement prohibited the customers from telling anyone about the refund and required them to delete negative social-media comments and reviews, according to a copy viewed by The New York Times. If this is a nondisparagement clause, it's illegal. The Consumer Review Fairness Act that went into effect in 2017 outlaws exactly what's happening here. [T]he Act makes it illegal for a company to use a contract provision that: 1. bars or restricts the ability of a person who is a party to that contract to review a company’s products, services, or conduct; 2. imposes a penalty or fee against someone who gives a review; or 3. requires people to give up their intellectual property rights in the content of their reviews. Hmm. Here's a customer complaint filed with the FDA: I requested a refund and i was told that i have to sign a release form to be refunded. The terms of that release form include that i cannot even mention the existence of the form, seek any additional compensation for damages and (this is most concerning) i could not share any information about my negative experience publicly. And if i had already posted anything in social media about my experience, i had to remove it before they would refund me. Looks pretty illegal to me. SmileDirectClub's critics may only be a small percentage of its customers, but they cannot legally be silenced this way. Tying refunds to gag orders is the worst form of customer service. It's pretty much just fine print extortion. SmileDirect wants unsatisfied customers to keep their fucked-up mouths shut. And now, with some nationwide coverage, it's going to realize turning refund payments into hush money does nothing to keep your reputation intact. Permalink | Comments | Email This Story

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Manhattan DA Cyrus Vance is back on his anti-encryption bullshit. A Fast Company profile of his "$10 million cyber lab" for decrypting phones contains some really choice quotes from the DA -- quotes that show he's about as on top of all things "cyber" as former NYC mayor/alleged tweet hackee Rudy Giuliani. The thrust of the piece is that breaking encryption is time-consuming and expensive. Hey, no one's arguing otherwise. But the arguments made by Vance and other law enforcement officials in the article are disingenuous and… well… stupid. Breaking encryption doesn't scale. Sorry about that, LEOs. That's a fact you're all going to have to come to terms with. But it's not impossible and there are more than a few companies offering to do the dirty work for cyber-strapped agencies that don't have $10 million on hand to bootstrap their own brute forcing. We're also living in the golden age of surveillance, despite the arguments of a few candle bearers primarily interested in wandering around in the dark cursing. Almost everyone carries a tracking device with them wherever they go. Voluntarily. Reams of data are generated every day, a lot of which doesn't even require a warrant to access. Cops are solving crimes using consumer DNA services, Apple wearables, and always-on smart devices that eavesdrop on conversations law enforcement normally wouldn't have access to. But let's start with some numbers. I'm beginning to think the Manhattan DA's office is no better at counting locked devices than the FBI is. As you may recall, the FBI spent a few years claiming it was sitting on an exponentially-increasing amount of encrypted devices… right up until it was forced to admit its counting software couldn't count and it had severely overstated the amount of devices in its possession. The same thing appears to be happening at the DA's office. An increase like this is inexplicable. Here's how many devices Cy Vance was complaining about in 2016: Manhattan District Attorney Cyrus R. Vance Jr. said at a news conference that investigators cannot access 175 Apple devices sitting in his cybercrime lab because of encryption embedded in the company’s latest operating systems. And here's what Fast Company is saying in 2020: On the day I visited the cyber lab, there were nearly 3,000 phones, most related to active criminal investigations, that Moran had not yet been able to access. Even given Android's dominance in the market, this seems like an incredibly dramatic increase over the past four years. And it seems even less likely given the fact that multiple vendors are capable of cracking older iPhones and Androids, if not the latest models (for now). Rolling your own decryption doesn't seem like the most efficient use of resources, especially when time is of the essence, as Vance claims. "If we seize a phone that is iOS 10 but can’t open the phone, maybe never, but, say, not for another two years, well, that’s not the timeframe in which cases move, particularly cases when they’re in court." Plea bargains are the norm, not trials. Even if we discount that depressing fact, pre-trial detention in New York City for felony charges is ~80 days. That's people being locked up before they've even had their day in court (not counting arraignment). Even if Vance wasn't pretending the city isn't willing to lock people up indefinitely while his office pokes away at their phones, the fact remains his office could look to outside help to shorten the process. But it doesn't. And the article (and Vance himself) never explains why. Let's move on to Vance and his incredible quotes. Behold the man so clearly convinced that device encryption is solely a middle finger extended to law enforcement, he actually seems to believe over-the-air software updates are proof Apple is lying about its ability to access the contents of encrypted phones. Vance is skeptical that Apple doesn’t have a secret backdoor. “They get into my phone all the time because they upgrade my operating systems and they send me messages,” he says. Just a friendly reminder, New Yorkers: this is an elected position. You don't need to be represented by someone who sounds like an Infowars commenter. Vance also appears unable to recognize why encryption matters. He claims phone makers used to be super-helpful. Companies like Apple would take a seized phone and return a jump drive full of data and communications a few days later. But that changed after the Snowden leaks revealed widespread, mostly-unchecked domestic and foreign surveillance. Apple and Google didn't immediately respond, but when they did, they made use of their devices safer for everyone. The "everyone" Venn diagram includes a certain number of criminals. But the important thing was doing all they could to protect customers from thieves (something government officials routinely complained about) and malicious hackers. It wasn't about screwing US law enforcement. It was a reaction to the sheer power of governments (not just the United States government) to compromise devices and intercept data and communications. Vance continues to take this personally. And in doing so, he's developed a lot of blind spots. Here's Vance stating he doesn't think US tech companies should be able to decide what's best for their customers. In the end, Vance just wants prosecutors to have all the tools available to do their jobs. “You entrust us with this responsibility to protect the public,” he says. “At the same time, they”—Apple and Google— “have taken away one of our best sources of information. Just because they say so. It’s not that some third party has decided, this is the right thing for Apple and Google to do. They just have done it.” So… third parties -- Google, Apple, etc. -- have not decided this. Other third parties (I guess the government?) should make this call. I mean, we know that's what Vance thinks. But this statement makes zero sense. If companies shouldn't be allowed to protect their customers from threats, who should be doing this? The government? Because I think if the lawmakers in Washington crafted a law designed to protect cellphone users, they'd come to the same conclusion -- encryption works -- even if it made things a little more difficult for law enforcement. Let's not forget the government is operating on power granted to it by the governed, not the other way around. If there's been a slight decrease in evidentiary uptake since the spread of default encryption, so be it. Very few Americans are willing to trade their device security for incremental law enforcement gains, no matter how many law enforcement officials believe citizens are too stupid to know what's good for them. Not all communications belong to law enforcement, warrant or not. Since the beginning of criminal time, people engaged in illegal behavior have taken steps to reduce their exposure. Front businesses. Cranking up radios/TVs so conversations won't be picked up by bugs. Off-the-grid, face-to-face meetings. And so on. To pretend phones are taking criminals to the next level ignores everything about criminal activity. Smart criminals play it smart. Dumb criminals are still dumb. Compelled decryption is still an unsettled issue, which means cops can roll the dice on court-ordered coercion. Fingerprints, faces, and irises can still unlock phones without much resistance, especially if one of the suspects is dead. To call Vance's anti-encryption disingenuous would strip that word of most of its power. Vance has an encryption problem. Maybe. But he doesn't have an evidence problem. And he's not making the most of what's available to him, possibly deliberately. I'm sure he'd prefer an encryption ban or court precedent that makes compelled decryption legal. He probably will see neither of these in his lifetime. But until he's out of office, he's going to continue making incoherent complaints. The least publications covering his so-called plight could do is greet him with the skepticism he deserves. Permalink | Comments | Email This Story

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Cord cutting continued to set records in 2019 despite years of cable and broadcast executives trying to claim the trend wasn't actually happening. Now that they're finally acknowledging the threat is real, many of these same executives are doubling down on the kind of behavior that brought them to this point in the first place. For example, Comcast's Q4 earnings report released this week shows the company saw a 3.2% drop in traditional cable TV subscribers in 2019, double the 1.6% loss rate the company saw 2018. How does the company plan to tackle the customer exodus driven by ramped up streaming competition from the likes of Disney, Apple, and others in 2020? Price hikes, of course: Comcast CFO just said that with rate increases planned for 2020 and continued consumer shift away from bundled video packages, investors should expect higher Comcast video sub losses in 2020 $CMCSA #cordcutting https://t.co/0a8POqFLid — Rich Greenfield (@RichLightShed) January 23, 2020 Those price hikes are occurring the same time Comcast's cable division CAPEX dropped 10.5% in 2019, you know, the exact opposite of what the Ajit Pai FCC promised when it obliterated FCC authority over telecom providers at lobbyist behest. This isn't the first time Comcast has made it clear that its strategy to tackle the rise in streaming competition and fleeing users is to just double down on price hikes. Company executives have noted several times that any money they lose on television, they simply make up for on the broadband side: "Watson added that while Comcast tries to keep customers through a variety of programming and broadband packages, but added that when a customer leaves as a result of price, the impact is actually favorable to the company. “We segment the marketplace,” Watson said, adding that when a low-end customer drops video service over price, but keeps their broadband service – at a higher monthly charge – the company makes out better. Oddly the reason this is possible is something most analysts and trade magazines don't much like to talk about: Comcast's growing monopoly over broadband. More specifically, as US telcos give up on residential broadband, they're giving giants like Comcast and Spectrum an even greater monopoly over broadband at speeds of 25 Mbps (the base FCC definition) and above across massive swaths of the country. So when users in those markets cut the TV cord and move to streaming, you're free to sock them with rate hikes, nonsensical fees, and bogus usage caps and overage surcharges. Because there's no other broadband option, there's no penalty (you know, the way monopolies work). Oddly the telecom and TV trade press doesn't much like to talk about this part of the conversation, if it's mentioned at all. But Comcast's protected from pretty much any real penalty thanks to limited competition in broadband and regulatory capture. And while 5G is bandied about as a panacea for what ails the sector, the same problems plague wireless as well (regulatory capture, consolidation that erodes competition, monopolies over tower backhaul fiber, etc.), meaning you shouldn't put too much stock in capped, expensive, and throttled wireless service magically pressuring giants like Comcast into giving a damn. Permalink | Comments | Email This Story

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EU member states are getting ready to implement Article 17 of the EU Copyright Directive, which will more or less force every platform that hosts any user-generated content, to either license every damn thing (impossible) or to put in place a tool like ContentID, that automatically spots and takes down "infringing" content. Despite the fact that Google spent over $100 million on its ContentID and competitive offerings (mainly Audible Magic) are quite expensive, defenders of this plan kept insisting that those filters work. Plenty of people have pointed out that they don't work very well at all, and it's even worse than just leading to legitimate content being taken down. Having such a tool, means that it will be abused. CCN.com recently wrote up yet another article highlighting the problem of massive false flagging campaigns showing up for YouTube videos: The latest problem surrounds mass false copyright claims. It turns out that false claiming someone’s video revenue as your own is so easy that companies can seemingly do it en masse. And these companies aren’t just going after subtle, small-time channels. They’ve hit some of YouTube’s biggest creators. Much of the article focuses on a company called Studio 71, which is the one filing a bunch of these recent false claims. Lots of folks are online highlighting these bogus takedowns. Dear @TeamYouTube I'm getting false copyright claims on my Pokemon videos from a company called Studio71_1_2, which doesn't own the copyright. I'm afraid to fight it because the content creator ALWAYS loses. What should I do? pic.twitter.com/jjM3VuBnal — Skul (@ShurtugalTCG) January 7, 2020 Things I didn't need today: A false copyright claim by troll account Studio71_1_2 which @YouTube didn't research, then automatically blocked one of my videos. Thanks. Sorry for those of you without access to one of my Pokemon vids; hopefully will fix soon. — Joe Zieja @ Anime Impulse (@JoeZieja) January 7, 2020 Hi, Yes, Hello, A livestream on my channel from November is being blocked (twice) in every country. Who is Studio71_1_2 and why do they think they own the rights to *checks notes* POKEMON?? pic.twitter.com/PMapsvjzVm — Captain Astronaut (@CptAstro) January 7, 2020 Had someone called Studio 71_1_2 copyright claim several of my Pokemon Shield videos last night, all of which was restored this morning other than my most recent video. Just finished submitting a form disputing it. Will see how long that takes..... pic.twitter.com/OENYVZrje5 — 🐻Dinkleberry_Crunch🐻 (@DinkleberryC) January 7, 2020 Oh no... I just received my first copyright claims. They’ve showed up multiple times across my latest Pokémon Shield stream.I honestly don’t know what to do... I’m really scared... Plus, I’ve never even heard of this Studio 71_1_2 [email protected] Care to explain this? pic.twitter.com/EWQWkdxEu3 — TentaCole (@TentaColeGaming) January 7, 2020 @Studio71US hey guys - can you fix this please? This hit a lot of us today, this really sucks. You guys of all people should know that this is not the way to handle this. Studio 71 does not own Mario let alone The Witcher 3. — The Completionist (@JKCompletesIt) January 7, 2020 It is 4 in the god damn morning @YouTube and my phone starts exploding with notifications and since I have it set to silent mode I know it’s some shit goin on! And it was! These mothafuckas not only claimed - BUT BLOCKED my Witcher 3 videos?!? Oh hell no! Stop this BULLSHIT! pic.twitter.com/dGquTYEODy — Jesse Cox (@JesseCox) January 7, 2020 There are a lot more like that too. The company behind all of these claimed that it was "a technical problem with YouTube that is out of our hands" but never quite explained what sort of problem it was. Hello, there is a technical problem with YouTube that is out of our hands. We are working on releasing all false claims as quickly as possible. Thank you for your understanding. — Studio71 (@Studio71_com) January 7, 2020 To its (slight) credit, the company claimed that it released all of those claims, even ones not disputed. But still. ++ UPDATE ++ All of yesterday's incorrect claims have been released by now (no matter if disputed or not). — Studio71 (@Studio71_com) January 8, 2020 At least one person asked them to explain how it happened and how it can be prevented in the future... and got no answer. Whether or not this was an overzealous individual, an automated system out of control, or some other failure, it doesn't change the basic fact that any such filter system will be regularly abused, on purpose or not, to takedown or claim the revenue on tons of content. This is exactly what we tried to tell people in the EU before they voted on the Copyright Directive... and they kept insisting it wouldn't possibly happen. After all, they said, they wrote into the law that it shouldn't be abused. I'm sure that will work out just great... Permalink | Comments | Email This Story

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Roughly a year back, we discussed famed American burger chain In 'N Out Burger cynical process for keeping trademarks it owns in certain countries in place, despite the chain having no actual presence in the country. You might be wondering how a company with no storefronts or delivery business in a given country could possibly hold valid trademark rights to its brand, given trademark law's requirement that companies actually use their trademarks in commerce to keep them. The answer to that is that In 'N Out flies staff out to several countries once every couple of years and launches a pop-up store, slinging burgers for a short period of time before packing everything up and heading home. The chain claims that this is done to raise its profile in other countries for an eventual permanent launch. Except that those launches never actually happen. It's all very frustrating, if for no other reason than nobody can figure out why In 'N Out cares so much about trademark rights in a country it sure doesn't seem to have any interest in doing business in. Well, the confusion continues, as In 'N Out has announced it will once again launch pop-up stores in New Zealand. American fast food chain In-N-Out Burger will open a pop-up store in Auckland on Thursday, sparking hopes for a permanent restaurant. The pop-up store will be be open between 11am and 2pm at the Portland Public House. But if history is anything to go by, burger lovers should not get too excited. No, they shouldn't. Even this Stuff post indicates that there doesn't seem to be any question as to the chain's doing this strictly to keep its trademarks from being invalidated. The law in New Zealand requires a trademark holder to engage in "genuine use" of the mark within the country three years from it being granted. These pop-up stores are In 'N Out attempting to fulfill that genuine use requirement, although there are questions as to whether or not such a use actually counts as genuine. Lawyer Clair Foggo, from Potter IP, said the company could be trying to protect its trademark in New Zealand. "What happens is if you have a trademark registration, you have three years from the date of registration to use it. If you don't use it in a genuine way it become vulnerable to revocation." If a trademark is not used within a three year period and lapses, a person can apply to have it removed from the register and may file their own application for the trademark claim, Foggo said. "It sounds like they are trying to use their trademark in a genuine way, not just putting out some merchandise or using it on social media," she said. "However there may be some question whether operating a one day pop up shop amounts to "genuine" or token use." So what counts as genuine use? It's delightfully ambiguous, of course. That ambiguity melts away, however, once you consider what the purpose of trademark law actually is, which is to prevent public confusion as to the source and association of goods and services. In that context, fleeting uses by major foreign brands preventing domestic companies from making use of similar branding makes absolutely zero sense. In fact, you could argue that In 'N Out's tactic achieves the opposite. Ironically, the use of pop-up stores only increases the brand awareness of the company within New Zealand, where the company mostly does not bother doing business. It may be only because of these pop-up stores, in other words, that a domestic company using similar branding would create confusion. Bottom line: it would be quite nice if In 'N Out would stop playing these trademark games, and ceased using hamfisted and cynical tactics just to have trademark rights in a country it doesn't want to do business in. Permalink | Comments | Email This Story

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I still laugh when I remember a copyright maximalist think tanker insisting that copyright could never be used for censorship, because "copyright holders are champions of the First Amendment" and "have no reason to censor anything." Of course, for years, we've documented over and over and over again how copyright is regularly used as a tool for censorship. And now we've got another example. And however you feel about the 2nd amendment or gun advocacy, hopefully you can agree that it's a problem for the 1st amendment when someone -- no matter what their political viewpoints -- abuses false copyright claims to take down videos they dislike. Last week, a Twitter user posted a short 13 second video of Kaitlin Bennett, a sort of social media troll play acting as a gun rights activist/journalist (who has been reasonably criticized for questionable journalism practices), who does outrageous stunts to get more attention. In the video, Bennett first insults a woman's weight, which makes the woman reasonably angry at Bennett. Bennett responds by implying to the woman that she has a gun, and when the woman starts to calm down, Bennett suggests that her carrying a weapon was what "deterred" further escalation. No matter what you think of the video, the user who had posted it (who was critical of Bennett) soon was informed by Twitter that a DMCA takedown notice was filed against the video, which Twitter removed: @KaitMarieox was too much of a coward to respond because she knew she fucked up. she reported my video and got it taken down. @twitter fix this. now. pic.twitter.com/wF88px0ApB — kelli | psycho🗡 (@yumyerim) January 20, 2020 While Twitter did eventually re-enable the video, it does show yet another example of how copyright can and is used to try to take down non-infringing works. This is why we keep raising concerns about further expansions of copyright's power to censor. When you provide any tool that enables quick censorship, it will be used for such purposes. Even if Twitter eventually relented and put the video back up, the initial suppression of speech, by use of a legal tool, is still suppression of speech. Permalink | Comments | Email This Story

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Time and time again we've highlighted how in the modern era, you don't really own the hardware you buy. In the broadband-connected era, firmware updates can often eliminate functionality promised to you at launch, as we saw with the Sony Playstation 3. And with everything now relying on internet-connectivity, companies can often give up on supporting devices entirely, often leaving users with very expensive paperweights as we saw after Google acquired Revolv, then bricked users' $300 smart home hub. The latest chapter in this ongoing saga comes courtesy of Under Armour, which in 2016 launched a $400 bundle of smart devices it dubbed the "Healthbox," which included a "smart scale," a wrist-worn health tracker, and chest-wrap heart monitor. All of these devices were tied together via the company's Under Armour Record app, which bundled all of your health data and presented it to you in an easily-digestible way. But by 2017 Under Armour had given up on the project, and began pulling the Health Box from store shelves. Users that had spent hundreds of dollars on the products could still use them -- until now. Last week, the company stated the Record app would no longer work, urging customers to head to the company's MapMyFitness platform, which the company insists provides "an even better tracking experience." Users say that's not actually the case, and the new platform only does a fraction of the overall data collection the original offering did. Because actually treating these customers well would cost Under Armour extra, it not only didn't give users a heads up that the app would stop working last week, it didn't provide users any effective way to export their data: "Current device owners also can't export all their data. While workout data can be exported and transferred to some other tracking app, Record users cannot capture weight or other historical data to carry forward with them. A reader tells Ars that Under Armour did not provide any notification of Record's demise to customers who were using the app, basically springing the sunset date on them as a silent surprise." Cool. Things you own that suddenly either stop working or getting updates is par for the course in the internet of things era, something owners of older Sonos platforms are also learning the hard way after the company first stopped supporting older hardware, then launched a program that effectively bricks perfectly usable gear. Not only is such behavior a great way to sour your brand in the eyes of users, it creates oceans of waste thanks to pricey hardware that no longer does what the manufacturer once promised. Permalink | Comments | Email This Story

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