posted about 3 hours ago on techdirt
Numerous news outlets this week proudly, but inaccurately, declared that net neutrality was now officially dead. CNET was one of several outlets forced to walk back its headline and story proclaiming net neutrality's premature demise after industry watchers pointed out that wasn't actually the case. If you look at the actual net neutrality repeal order, you'll note that it's actually pretty wishy washy in terms of the actual repeal date: "Effective dates: April 23, 2018, except for amendatory instructions 2, 3, 5, 6, and 8, which are delayed as follows. The FCC will publish a document in the Federal Register announcing the effective date(s) of the delayed amendatory instructions, which are contingent on OMB approval of the modified information collection requirements in 47 CFR 8.1 (amendatory instruction 5). The Declaratory Ruling, Report and Order, and Order will also be effective upon the date announced in that same document." Consumer advocate Harold Feld, who arguably knows more about FCC policy than anybody else in the States, dug deep into the policy weeds over at his blog explaining what's going on. The overly-simplistic version: Before net neutrality gets formally repealed and flimsy replacement policies take effect, the FCC will wait for the Office of Management and Budget (OMB) to review the much weaker transparency rule under the Paperwork Reduction Act. Once OMB signs off, the FCC will publish a second notice in the Federal Register announcing when everything goes into effect. That's expected sometime in the next month or two, but it hasn't happened yet, meaning that net neutrality rules remain on the books, for now. Feld, meanwhile, notes this odd bureaucratic delay is not normal, but appears to be very much by design: "This is, to say the least, highly unusual. There is absolutely no reason for FCC Chairman Ajit Pai to have stretched out this process so ridiculously long. It is especially puzzling in light Pai’s insistence that he had to rush through repeal of net neutrality over the objections of just about everyone but the ISPs and their cheerleaders because every day — nay every minute! — ISPs suffer under the horrible, crushing burden of Title II is another day in which Princess Comcast Celestia, Princess Twilight Verizon Sparkle, and all the other Broadband Equestria Girls must endure the agonies of a blasted regulatory Hellscape rather than provide us all with wonderful new innovative services at even lower cost than they do now." The question then becomes: why is Ajit Pai's FCC taking so long to formally repeal rules he (falsely) claims are devastating Comcast, AT&T and Verizon? My informed guess (supported by at least two industry lawyers I've spoken to) is that Pai is trying to buy time. Why? ISPs know that the FCC's repeal is on shaky legal ground thanks in large part to bizarre FCC behavior and numerous ethical gaffes. ISPs like Comcast are also nervous about the fact that more than half the states in the country are now pursuing their own net neutrality rules. As such, ISP lobbyists and hired wonks are pushing for a fake, loophole-filled net neutrality law with one real purpose: pre-empting tougher state laws and preventing the 2015 rules from being re-established should the FCC lose in court. It's likely the FCC bogged things down in bureaucracy intentionally to buy time for ISP lobbyists to try and drum up support for this bogus law. Unfortunately, as they have throughout this entire affair, ISPs appear to have misjudged the political environment here, and have faced a steep uphill climb in getting support for the crap law they wrote (incarnations of which are being pushed by Marsha Blackburn in the House and John Kennedy in the Senate). As ISPs grow more nervous about losing in court and state net neutrality efforts, calls for an ISP crafted "Congressional solution" have only grown. But by and large most net neutrality supporters on the streets and in Congress appear to not be falling for this little ruse, knowing full well that the chance of this cash-compromised Congress actually passing tough rules are virtually nonexistent. If you're a fan of net neutrality, the best chance in saving the rules rests with a reversal by the courts during the looming court battle. Failing that, your best bet is voting in politicians that prioritize healthy competition, truly open markets, and consumer and small business welfare over monopoly protectionism and cronyism. Permalink | Comments | Email This Story

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posted about 6 hours ago on techdirt
A couple of years after it happened, Australian citizens are finally being (indirectly) informed their government harvested cell site location info to track their daily activities. This isn't the work of an intelligence agency or a secretive law enforcement effort. Instead, it's an (unannounced) partnership between the Australian Bureau of Statistics (which handles the Australian Census) and a cellphone service provider. The provider apparently willingly turned over cell site info without a court demand, government mandate, or consultation with its customers. Asher Wolf has the details at Medium: The ABS claims population estimates have a “major data gap” and so they’ve been a busy bee figuring out a way to track crowd movement. Their solution? Mobile device user data. “…with its near-complete coverage of the population, mobile device data is now seen as a feasible way to estimate temporary populations,” states a 2017 conference extract for a talk by ABS Demographer Andrew Howe. While the “Estimated Resident Population” (ERP) is Australia’s official population measure, the ABS felt the pre-existing data wasn’t ‘granular’ enough. What the ABS really wanted to know was where you’re moving, hour by hour, through the CBD, educational hubs, tourist areas. Third-party records are almost always easily-accessible. They are subject to very limited protections. But generally when the government wants access to records, it's because they're targeting someone in a criminal or national security investigation. What few people expect is for the government to obtain this data en masse, then proudly proclaim its usefulness a couple of years after it's already made use of it. Cellphone users weren't informed of the government's plans. And the telco made no effort to inform affected customers or give them an opportunity to opt out. While it may look like an innocuous effort to gauge temporary population increases linked to special events and holiday weekends, the information obtained could easily be mined to gain insight on traffic to places of worship, government buildings, airports, workplaces, and protests. Supposedly, the information has been anonymized. It obviously hasn't been completely stripped of personal information. The slide deck [PDF] detailing the effort notes the data can be broken down by age and sex. The anonymization claim is made without any support from the ABS, which still has yet to provide any further info -- much less a privacy impact assessment -- via its website. As Wolf points out, the ABS doesn't exactly have a great track record on either data anonymization or protecting the massive amount of data it collects. Considering the last attempt by a government department to roll-their-own-crypto resulted in the MBS/PBS data breach of 2.5 million Australians, it’d be nice to know exactly how the ABS or telco anonymised and aggregated the data — especially since the ABS on-sells micro-data, from time to time. As other rights agencies and activists note, the collection of personal info in bulk by the government is always alarming. At best, the techniques deployed here are "deeply unethical." At worst, they conjure images of the worst government behavior: the use of personal info to target specific groups for additional surveillance or internment (as was done with the Japanese during World War II using US Census data). The entire project was undertaken with zero public notice by an agency already known for being cavalier in its treatment of the wealth of personal information obtained through the Census. ABS has promised more answers but has ignored Wolf's direct questions about study -- including the telco involved and the method used to anonymize the data. When it finally delivers its "detailed information paper" -- two years after the fact -- it's unlikely the details will include the answers Wolf is seeking. Permalink | Comments | Email This Story

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posted about 14 hours ago on techdirt
Although blogging may have lost its early excitement for many, in some countries it still represents a vital channel for news that may not be available elsewhere. For example, as Global Voices explains: Blogging emerged in Tanzania around 2007 and became popular as an alternative news platform with educated, middle class people, as well as politicians and political parties. In Tanzania, where media historically holds strong ties to government interests, blogging opened up possibilities for individuals to establish private news outlets that proved immensely powerful in terms of reach and readership. The current Tanzanian government is not very happy about this uncontrolled flow of information to the people. But instead of anything so crude as shutting down blogs directly, it has come up with a more subtle, but no less effective, approach: On March 16, 2018, the United Republic of Tanzania issued the Electronic and Postal Communications (Online Content) Regulations demanding that bloggers must register and pay over USD $900 per year to publish online. To put that in context, Tanzania's GDP per capita was under $900 in 2016, so the new fees are completely out of reach for the majority of people in the country. As Quartz notes, in addition, the registration process is onerous, and the fines for infringement serious: applicants are expected to fill a form detailing the estimated cost of investment, the number of directors and stakeholders in the platform, their share of capital, staff qualifications, expected dates of commencing operations, besides future growth plans. But even after providing this documentation, authorities still reserve the right to revoke a permit if a site publishes content that "causes annoyance, threatens harm or evil, encourages or incites crimes" or jeopardizes "national security or public health and safety." Officials could also force managers to remove "prohibited content" within 12 hours or face fines not less than five million shillings ($2,210) or a year in prison. The situation is slightly easier in Tanzania's northern neighbor, Uganda. Under a new order there (pdf), "All online data communication service providers, including online publishers, online news platforms, online radio and television operators" are required to register with the Uganda Communications Commission. However, there's no mention of fees, or punishments for non-compliance. But if life for Ugandan bloggers seems to be easier than for those in Tanzania, a new daily tax on social media is designed to discourage ordinary users from engaging in what Ugandan President Yoweri Museveni calls "lugambo", or gossip, online. A report in the local Daily Monitor newspaper quotes the President as saying: "I am not going to propose a tax on internet use for educational, research or reference purposes... these must remain free. However, olugambo on social media (opinions, prejudices, insults, friendly chats) and advertisements by Google and I do not know who else must pay tax because we need resources to cope with the consequences of their lugambo" The amount of the daily tax is not clear -- a BBC report on the move says it might be either 100 or 200 Ugandan shillings ($0.013 or $0.027) a day -- and there are no details yet on how the new law will be enforced and the taxes collected for services deemed to involve "gossip". But as another Global Voices post notes, this social media tax is just the latest clampdown on the online world in Uganda. It quotes a January 2018 report from Unwanted Witness, a Ugandan NGO, which said: 2017 registered the highest number of Ugandans ever arrested for their online expression and these arrests are clearly targeted crackdown on free flow of information and speech on the Internet. Different as they are, what the moves in Tanzania and Uganda both show is African governments coming up with new ways to muzzle online commentators that seek to tell people what the official media don't. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+. Permalink | Comments | Email This Story

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posted about 18 hours ago on techdirt
Remember GEMSA (Global Equty Management (SA) Pty. Ltd.)? That's the Australian patent troll who "won" a Stupid Patent of the Month award from EFF for its silly patent (US Patent 6,690,400 on "virtual cabinets representing a discrete operating system." GEMSA sued a bunch of companies, including Airbnb and Zillow for supposedly violating the patent. Oh, and then it sued EFF in Australia, getting an order from the court demanding that EFF take down its article and barring EFF from ever publishing anything about any GEMSA patents. That kinda thing is not going to fly in the US, and so EFF went to court in the US, seeking declaratory judgment that such an Australian court order was totally unenforceable in the US under the SPEECH Act. Late last year, the court gave a thorough and complete victory to EFF, making it clear that GEMSA could not, in any way, hope to enforce its Australian order in the US, as it clearly would violate EFF's First Amendment rights. And now, the US Patent Office has basically killed GEMSA's patent that EFF called out in the first place, via the all important inter partes review system that is currently being challenged at the Supreme Court (ruling coming soon...). The ’400 patent described its “invention” as “a Graphic User Interface (GUI) that enables a user to virtualize the system and to define secondary storage physical devices through the graphical depiction of cabinets.” In other words, virtual storage cabinets on a computer. E-Bay, Alibaba, and Booking.com, filed a petition for inter partes review arguing that claims from the ’400 patent were obvious in light of the Partition Magic 3.0 User Guide (1997) from PowerQuest Corporation. Three administrative patent judges from the Patent Trial and Appeal Board (PTAB) agreed. The PTAB opinion notes that Partition Magic’s user guide teaches each part of the patent’s Claim 1, including the portrayal of a “cabinet selection button bar,” a “secondary storage partitions window,” and a “cabinet visible partition window.” The opinion demonstrated this graphically as well: The PTAB laughed off GEMSA's argument that the original owner of the patent, Flash Vos, somehow "moved the computer industry a quantum leap forward in the late 90's" by pointing out that GEMSA "has put forth no evidence that Flash Vos or GEMSA actually had any commercial success." Ouch. I'm curious if GEMSA will now seek to sue the US Patent Office in Australia as well... Permalink | Comments | Email This Story

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posted about 20 hours ago on techdirt
It's said that there is no honor among thieves, but it should be obvious that such a blanket axiom is bound to be at least partially bullshit. Still, this mantra gets applied to the pirating community by its enemies, with those that rip and/or view pirated content labeled as ungrateful kid-slobs, simply looking for any content they can gobble up without any payment whatsoever. Any value or benefit derived from this community is denied or ignored, with the spotlight being only on the inflated injury this same community inflicts on unimaginably wealthy companies and studios. Again, it should be obvious that this is all bound to be bullshit. In fact, we've discussed the potential benefits to be found within these communities often in the past. Pirate communities can be viewed as a sort of market study companies get for free, serve as a spotlight on under-served potential customers, and not to mention that this community often buys more content then does their non-pirating cousins. None of this is to excuse copyright infringement, of course, but rather serves to remind us that the world is not black and white, and is instead muddled, complicated, and mushy. Much like Amazon's streaming service the past few weeks, actually. A fact we only really know about due to this same pirating community doing the investigative work for free. This week there’s been a sustained chorus of disapproval over the quality of pirate video releases sourced from Amazon Prime. The anger is usually directed at piracy groups who fail to capture content in the correct manner but according to a number of observers, the problem is actually at Amazon’s end. Discussions on Reddit, for example, report that episodes in a single TV series have been declining in filesize and bitrate, from 1.56 GB in 720p at a 3073 kb/s video bitrate for episode 1, down to 907 MB in 720p at just 1514 kb/s video bitrate for episode 10. Numerous theories as to why this may be the case are being floated around, including that Amazon is trying to save on bandwidth expenses. While this is a possibility, the company hasn’t made any announcements to that end. Reports suggest the drop in quality is no small thing. Further investigation has shown that the streaming quality via Amazon Prime has had something like a 50% drop. Given how clear it is that the quality of legitimate services has a direct impact on the public's willingness to engage in piracy, we can only speculate on why Amazon thought that downgrading its streaming quality was a good idea. What doesn't seem to be in question, however, is that it did so on purpose. With Amazon distancing itself from the issues, piracy groups have already begun to dig in the knife. Release group DEFLATE has been particularly critical. “Amazon, in their infinite wisdom, have decided to start fucking with the quality of their encodes. They’re now reaching Netflix’s subpar 1080p.H264 levels, and their H265 encodes aren’t even close to what Netflix produces,” the group said in a file attached to S02E07 of The Good Fight released on Sunday. “Netflix is able to produce drastic visual improvements with their H265 encodes compared to H264 across every original. In comparison, Amazon can’t decide whether H265 or H264 is going to produce better results, and as a result we suffer for it.” An expert in video encoding that TorrentFreak spoke with took things further into the technical realm, but the upshot is that the stream quality has been cut in half in a way that looks to be an attempt to serve videos at reduced bandwidth. We still can only guess, because Amazon isn't talking. Unlike the pirate community, however. With the situation failing to improve during the week, by the time piracy group DEFLATE released S03E14 of Supergirl on Tuesday their original criticism had transformed into flat-out insults. “These are only being done in H265 because Amazon have shit the bed, and it’s a choice between a turd sandwich and a giant douche,” they wrote, offering these images as illustrative of the problem and these indicating what should be achievable. With DEFLATE advising customers to start complaining to Amazon, the memes have already begun, with unfavorable references to now-defunct group YIFY (which was often chastized for its low quality rips) and even a spin on one of the most well known anti-piracy campaigns. As of the past few days, it seems that Amazon has made changes on its end, restoring the original quality of Prime's streams. The company is still refusing to provide any kind of explanation as to why any of this happened to begin with, but it seems quite clear that without the pirating community calling them out, Amazon's customer service claims that all issues were at the end-user and not with the stream itself would have been accepted for much longer, if not indefinitely. Without the pirate hobbyists, they would have gotten away with it. Permalink | Comments | Email This Story

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posted about 21 hours ago on techdirt
AT&T and Verizon have enjoyed a stranglehold over fixed and mobile residential broadband for years. They also enjoy a relative monopoly over broadband business data services, a market that services everything from cellular tower backhaul to ATMs. Given that both companies have a rich, deep history of engaging in all manner of dubious behavior to keep these markets as uncompetitive as possible, there would be absolutely no shortage of ammunition for regulators seeking to punish them on antitrust grounds. Given that both companies are politically powerful campaign contributors, that generally doesn't happen, regardless of the party in power. Which is why it's arguably entertaining to see the same Trump administration that has made it easier than ever for these companies to behave anti-competitively (net neutrality, privacy) conducting an investigation into whether AT&T and Verizon colluded to making switching carriers more difficult than it needs to be: "The Justice Department has opened an antitrust investigation into potential coordination by AT&T, Verizon and a telecommunications standards organization to hinder consumers from easily switching wireless carriers, according to six people with knowledge of the inquiry." At the heart of the controversy is eSIM, a technology that's supposed to make it easier than ever to switch carriers without consumers needing to buy and install a new SIM card. With eSIM, user identification technology of a traditional SIM card is instead transferred to the device's processor or modem itself. Ideally, that could let a consumer switch carriers within just a few seconds. Given that AT&T and Verizon have increasingly been losing customers to T-Mobile, they apparently worked with an industry standards group to try and defeat one of the central advantages of the technology: "The technology lets people remotely switch wireless providers without having to insert a new SIM card into a device. AT&T and Verizon face accusations that they colluded with the G.S.M.A. to try to establish standards that would allow them to lock a device to their network even if it had eSIM technology." Ironically this is probably among the least egregious offenses these companies have engaged in during their thirty year anti-competitive dominance, but it's an interesting paradigm shift all the same. And it's an indication that Trump DOJ antitrust head Makan Delrahim isn't the same sort of blind corporatist ideologue we've seen stumbling around elsewhere in the administration (FCC boss Ajit Pai comes quickly to mind). Delrahim's the same guy spearheading the Trump administration's opposition to AT&T's latest megamerger, a move some wondered might have been motivated by cronyism, not consumer welfare. But with this move there's indications that Delrahim might genuinely be concerned about consumer welfare, a notable standout for an administration that's been tripping over itself to make life easier than ever for companies trying to behave anti-competitively on the broadcast and telecom fronts, whether that's the gutting of media consolidation rules to Sinclair's specific benefit, to gutting net neutrality just so regional telecom monopolies can distort a level playing field and further cash in on a lack of last-mile broadband competition. Granted American history suggests it's more than likely this inquiry goes nowhere (Verizon says it's just a "difference of opinion,") but it's still interesting to see at least one member of the Trump administration not actively making media consolidation and monopoly power problems worse. Permalink | Comments | Email This Story

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posted about 23 hours ago on techdirt
Hopefully nothing will come of this, but one should never underestimate the creativity of city attorneys presented with the opportunity to rack up billable hours. Yet another Los Angeles city councilman has taken Waze to task for creating "dangerous conditions" in his district, and the politician is now "asking the City to review possible legal action." [...] In a new letter sent to the City Attorney’s Office, [Councilman David] Ryu formally asked Los Angeles’ top attorney to examine Waze’s behavior. While Ryu said he supported "advances in technology," he decried Waze and its parent company, Google, for refusing "any responsibility for the traffic problems their app creates or the concerns of residents and City officials." The city's government believes the traffic/mapping app has made Los Angeles' congestion worse. That the very body tasked with finding solutions to this omnipresent L.A. problem is looking to hold a private third party company responsible for its own shortcomings isn't surprising. If a third-party app can't create better traffic flow, what chance do city planners have? But beyond the buck-passing on congestion, the city may have a point about Waze making driving around Los Angeles a bit more hazardous. For several months, it's been noted that Waze has been sending drivers careening down the steepest grade in the city -- Baxter Street. Drivers seeking routes around Glendale Ave. traffic choke points have been routed to a street with a 32% grade, increasing the number of accidents located there and generally resulting in barely-controlled mayhem. When any sort of precipitation falls from the sky, the city goes insane. Drivers bypassing Glendale are now hurtling down a steep, water-covered hill, compounding the problem. It's become noticeable enough that the city government has approached Waze/Google in the recent past, asking for an algorithmic change to prevent drivers from being routed to Baxter. These efforts were met with a reasonable response from Google. "Google Maps models the ever-changing real world by mapping for ground truth," the company said. "This means that our map reflects any measures taken by local agencies to protect their citizens—for example, blocking off a steep road, or implementing turn restrictions. Should the local agency decide to restrict Baxter Street, this change will be taken into account when routing drivers through the Los Angeles area." The city finds this response -- one that says the city should do something about limiting access to Baxter Street if driving on it is inherently dangerous -- unreasonable. These are the words of Councilman Paul Krekorian. "[Google has] not demonstrated any willingness to engage," he told Ars last week. "It goes to the heart of problems—that’s not [the] good corporate citizenship I expect." Yes, but "engage" how? The city believes the algorithm can be rewritten to exclude Baxter Street from suggested routes without screwing things up elsewhere. Residents of Baxter Street want even more -- for it to be erased from Google's map. This is nothing more than a city looking to offload problems of its own making. I suppose the addition of a cautionary note when rerouting to Baxter wouldn't be that much of a problem to implement, but that shouldn't even necessarily be something Google needs to handle. The Waze app allows drivers to add notes about streets, traffic, etc. so it's highly likely motorists are being warned about the steep grade but choosing to take their chances anyway. I'm not sure where the city wants to go with this, but that hasn't stopped it from tasking its attorney from trying to find some way to punish Google for city's long-running congestion problems. Google isn't part of the city government, isn't asked to participate in city planning efforts, cannot control access to the city's streets, and has no way of forcing drivers to take only certain routes. This is all stuff only the city can address, and it's decided to make it someone else's problem. Permalink | Comments | Email This Story

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posted about 23 hours ago on techdirt
Pay what you want for The 2018 Machine Learning Bundle and unlock the first ebook, focused on test-driven machine learning. If you beat the average price, you get 9 more ebooks and courses. You'll learn about OpenCV, Python, and TensorFlow. You will learn how to build neural networks using Python libraries and tools such as Keras and Theano, how to improve your work by combining the MapReduce framework with Spark, and much more. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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posted 1 day ago on techdirt
Earlier this month I talked a little bit about "Facebook Derangement Syndrome" in which the company, which has real and serious issues, is getting blamed for other stuff. It's fun to take potshots at Facebook, and we can talk all we want about the actual problems Facebook has (specifically its half-hearted attempts at transparency and user control), but accusing the company of all sorts of things that are not actually a problem doesn't help. It actually makes it that much harder to fix things. The latest case in point. Zack Whittaker, who is one of the absolute best cybersecurity reporters out there, had a story up recently on ZDNet about a data mining firm called Localblox, that was pulling all sorts of info to create profiles on people... leaking 48 million profiles by failing to secure an Amazon S3 instance (like so many such Amazon AWS leaks, this one was spotted by Chris Vickery at Upgard, who seems to spot leaks from open S3 instances on weekly basis). There is a story here and Whittaker's coverage of it is good and thorough. But the story is in Localblox's crap security (though the company has tried to claim that most of those profiles were fake and just for testing). However, many people are using the story... to attack Facebook. Digital Trends claims that this story is "the latest nightmare for Facebook." Twitter users were out in force blaming Facebook. But, if you look at the details, this is just Facebook Derangement Syndrome all over again. Localblox built up its data via a variety of means, but the Facebook data was apparently scraped. That is, it used its computers to scrape public information from Facebook accounts (and Twitter, LinkedIn, Zillow, elsewhere) and then combined that with other data, including voter rolls (public!) and other data brokers, to build more complete profiles. Now, it's perfectly reasonable to point out that combining all of this data can raise some privacy issues -- but, again, that's a Localblox issue if there's a real issue there, rather than a Facebook one. And, this is clearly the kind of thing that Facebook actively tries to prevent. Remember, as we've covered, the company went on a legal crusade against another scraper company, Power.com, using the CFAA to effectively kill that company's useful service. Here's why this kind of thing matters: if you blame Facebook for this kind of thing, then you actively encourage Facebook to go out of its way to block scraping or other efforts to free up user data. That means, it ends up giving Facebook more control over user data. Allowing scrapers of public info (again, the fact that this is public info is important) could actually limit Facebook's powers, and enable other companies to pop up and make use of the data inside Facebook to build other (competing) services. The ability to scrape Facebook would allow third parties to build tools to give users more control over their Facebook accounts. But when we look on scraping of public info as somehow a "breach" of Facebook (which, again, is separate from the messed up nature of Localblox leaking data itself), we're pushing everyone towards a world where Facebook has more control, more dominance and less competition. And that should be the last thing that anyone (outside of Facebook) wants. Permalink | Comments | Email This Story

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posted 1 day ago on techdirt
Apparently, you don't actually hate overpaying for cable, broadband and phone service. At least that's the takeaway from this bizarre editorial over at the Washington Post by columnist Megan McArdle. In it, McArdle ineffectively argues that while the rise in streaming video competition is great and all, over-paying your regional telecom monopoly is something we all secretly love. The odd part is there's nothing in the piece that actually supports that argument, outside of logically-flimsy comparisons between telecom services and the crappy, free shampoo you get at hotels: "When you book a hotel, you expect “complimentary” mattresses, sheets and towels, rather than renting each individually. When you go to a restaurant, you don’t pay extra to enjoy the use of a plate. And you get very testy indeed upon discovering that your bargain airline charges you to choose a seat or bring luggage. Bundling, it turns out, is valuable." So one, "hotels are really nice to not charge you to rent sheets" isn't really an argument, it's just words kind of stapled together. Including some crap shampoo the company pays a pittance for in bulk isn't a "bundle," and it's not remotely comparable to the telecom and TV sectors, where consumers are often punished with higher prices when they try to buy standalone broadband and avoid services they don't want and may not be able to afford. Yet the Post rushes forward with that comparison undaunted: "Bundling is especially valuable in businesses where fixed costs account for a disproportionate share of the total price. Once you’ve gone to the monstrous expense of building and staffing a hotel, providing extra amenities generates little additional cost while adding a great deal of value for the customer. And the same is true of cable. Much of the expense comes from laying and maintaining a wire to your house; adding another channel is relatively cheap." That's misleading. In the States, Americans pay more than a long-list of developed nations for broadband and TV service. The cost of deployment was covered by rates and taxpayers decades ago (and covered, and covered) in most areas, and while there's certainly costs to maintain and support that infrastructure, profit margins on broadband (and phone service in particular) are arguably stellar. Phone service in the IP era in particular costs a pittance to provide, but prices for all three bundled services are artificially high thanks to limited competition in broadband and regulatory capture. Realities all ignored by the Post: "Right now, cable companies sell you phone, Internet service and entertainment products, all of which share one wire, one maintenance operation and one customer service staff. Without those other services, the Internet division would have to cover all that overhead. So if you pay less for the entertainment, you’re probably going to have to pay more for connectivity." Again, that's simply a bogus argument. TV profit margins are certainly getting squeezed as streaming erodes TV market share (which is why some smaller cable companies are considering only selling broadband), but broadband and phone revenues are as fat as they come. Just because an AT&T or Comcast customer decides to cut the cable cord doesn't mean the company has to charge you more money for other services. They charge you more money (usually in the form of usage caps and overage fees) because there's limited competition and they all but own many state and federal lawmakers. From there, the piece settles into the lazy, trendy media hot take that cord cutting doesn't save you money anyway: "Start adding up the cost of the subscriptions you’d need to replicate your current viewing habits, and you’ll quickly see that it looks...surprisingly like a cable bill." We've noted time and time again how that claim ("when you sign up for every single streaming service you pay a lot of money!") doesn't hold water, and if you spend more than twenty seconds with real consumers they'll consistently tell you that cord cutting saves them plenty each and every month. All told, trying to argue that consumers really secretly love overpaying mammoth telecom and media monopolies is just a bizarre hill to die on, especially with so many other pressing issues of the day worth opining on. Permalink | Comments | Email This Story

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A recently-released Inspector General's report shows the FBI didn't try as hard as it could to find a way into the San Bernardino shooter's locked iPhone. It appears FBI officials were more interested in obtaining a favorable court ruling than seeking technical assistance from anyone other than Apple, despite the DOJ's courtroom claims about time being of the essence. This had a lot to do with the current FBI leadership. James Comey made fighting encryption his personal crusade -- one that has been carried forward by both the DOJ and the FBI's new director, Christopher Wray. Comey's new book about his government career -- one that came to an unceremonious end when President Trump fired him -- provides a few more details about his crusade against math and personal security. A passage in Comey's new book briefly discusses his initial reaction to the news smartphone manufacturers would be moving to default encryption. Comey claims the Snowden leaks prompted a worldwide shift to encrypted communications before moving on to Apple and Google. In September 2014, after a year of watching our legal capabilities diminish, I saw Apple and Google announce that they would be moving their mobile devices to default encryption. They announced it in such a way as to suggest -- at least to my ears -- that making devices immune to judicial orders was an important social value. This drove me crazy. I just couldn't understand how smart people could not see the social costs to stopping judges, in appropriate cases, from ordering access to electronic devices. There's more to it than this, but this is from Comey's perspective. Part of the move to device encryption was due to pressure from legislators that phone companies "do more" to protect customers whose devices had been stolen. And some of it was probably backlash to the flow of Snowden leaks, showing the government had assembled a massive surveillance apparatus following the 9/11 attacks, turning tech companies into unwitting accomplices of the surveillance state. As Comey sees it, the tech sector fails to comprehend the consequences of encrypted communications and devices because it only deals with the positive side of human connections. The leaders of tech companies don't see the darkness the FBI sees. Our days are dominated by the hunt for people planning terrorist attacks, hurting children, and engaging in organized crime. We see humankind at its most depraved, day in and day out… I found it appalling that the tech types couldn't see this. I would frequently joke with the FBI "Going Dark" team assigned to seek solutions, "Of course the Silicon Valley types don't see the darkness -- they live where it's sunny all the time and everybody is rich and smart." Theirs was a world where technology made human connections and relationships stronger. Conversely, the FBI views any communications it can't see as suspect. It ignored solutions to engage in a courtroom battle over a phone that ultimately held nothing of interest. The FBI continues to push for a government solution to the problem -- a mandate it can wield in every situation. Under Comey's command, the FBI has shown it is unable to honestly hold an "adult" conversation about the issues. If officials like Comey feel tech companies are being deliberately obtuse, they cannot honestly argue the FBI isn't acting the same way. Permalink | Comments | Email This Story

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When we recently discussed the rather odd story of the famous burger chain In 'N Out suing an Australian burger joint over trademark concerns despite having no storefront presence in the country, there was one aspect of it glossed over in the source link and omitted by me that really deserves some fleshing out. You see, like here in America, Australian trademark law has a provision that you actually must be using the mark in question in order to retain it. More specifically, use must be established every five years in order to keep the trademark valid. Given that In 'N Out operates no storefronts in Australia, readers rightly wondered how it was possible that the company even had a valid trademark to wield in its trademark battle. The answer to that question is as cynical as it is perverse. It turns out that In 'N Out turns up so-called "pop-up" storefronts for its chain in Australia and a few other countries every so often, specifically to keep just barely within the trademark law provisions. In Australia, in particular, trademark laws have a “use it or lose” quality to them. If they are not used within a five-year span of time, companies could lose protection for their names and logos. International businesses, though they may never create a fully running branch overseas, could be vulnerable to someone else taking their ideas in other countries if they apply for a trademark. This would dilute the brand in a whole host of ways. To avoid the misfortune of Burger King, who lost its trademark and had to become Hungry Jack’s, In-N-Out found a workaround to establishing a permanent presence in the Land Down Under by simply hosting pop-ups every so often to use their trademark in the country. Cynical, as I said, and a serious perversion of the purpose of trademark laws generally. The entire point of trademark protections is to keep customers informed as to the source of goods purchased and the affiliations of the companies from which they purchase them. Remember that the context of this story and the chain's lawsuit is the existence of a single burger joint calling itself "Down 'N Out." While there is clear homage to In 'N Out, the burger joint does nothing to convince the public that it's part of the California chain. So, instead of serving the public good by staving off confusion, what this gaming of Australia's trademark law does instead is to simply lock up language similar to the In 'N Out name by maintaining an insultingly limited presence in the country's market. In 'N Out does not operate these pop-ups in order to server the Australian market. Rather, they operate them specifically so as to deny that Australian market its sort of business. These pop-ups have, ahem, popped up for years, with no sign of In 'N Out even considering having any real storefront presence anywhere in the country. Instead, the pop-ups serve only as an excuse to file lawsuits such as it did against Down 'N Out. Whatever you might think of In 'N Out's actual trademark claim in its lawsuit, that's truly about as cynical as it gets. Permalink | Comments | Email This Story

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Eric Goldman brings us the dismissal of a lawsuit against Google that's… well, a bit on the unintentionally hilarious side. The lawsuit argues there's a First Amendment right for Google Ad placement -- one that circumvents Google's policies against allowing questionable claims like "Honey Cures Cancer!" -- and contains a request for $10 billion in damages. El Reg first reported on the lawsuit, filed by a former IBM senior engineer. Apparently tired of the rigorous science involved in his day job, Shajar Abid decided to branch out into speculative fiction. Abid, who goes by the first name "Shaq" on LinkedIn, claims to have developed "a divine cure for cancer" consisting of "only honey herb and spice." Google, he insists, will not allow him to advertise the product through AdWords. He is seeking $10 billion for what he believes is a violation of his First Amendment speech and religious rights, for loss of business, and for pain and suffering. Also, he wants the opportunity to advertise on Google when people search for cancer cures. Needless to say, it's a pro se lawsuit, which makes demands Google cover his legal costs a bit perplexing. In addition to the $10 billion, Abid wants the $88 he racked up in ad costs pre-cancellation to be nullified since there won't apparently be enough money to cover this if he wins. But he won't win, something readers may have picked up from the first line of this post. There are many reasons he won't win, but going pro se and alleging Google's denial of prime cancer-curing ad placement is somehow a government action is but one of them. Abid finds it odd Google won't let him claim honey cures cancer. Well, it will, but it just won't allow him to buy ad slots for this claim. Abid could start a blog or Facebook page or whatever, but he won't be allowed to promote it with Google AdWords. Prior legal issues with Google's pharma ad sales have resulted in policies that won't allow someone to claim they can cure cancer with honey, no matter how much they firmly believe it will. And Abid believes honey cures cancer as hard as anyone who stands to profit from this claim can possibly believe something. From the lawsuit [PDF]: Last weekend on Friday March 31 -2017, i received an email that my site had been suspended. It was against google policies as they have details about selling pharmaceuticals etcs.. I said ok, I will call and tell them, i studied the google rules, tell me what to change. So the first girl I talked to gave a half dozen modifications to do, including take out "divine cure for cancer," which is my sincerely held religious belief that it is. But what she doesn't know is I have done an intensive pharmacognosy study as well as other in depth proprietary research. I feel this was the first violation, obstructing my 1st amendment rights, however the kind and noble judge interprets. References are cited. My philosophy of medicine is based on Moses's wisdom. One time Mose got sick, so he prayed to God for guidance. God guided him to a plant. So he went and ate it. Then he was cured. Also this: I am combining a systems biology empirical approach based on prophetic medicine. This culminates (sort of) in a Section 1983 claim, which is reserved for deprivation of rights by the government, which Google plainly isn't. (Or "even under the spirit of Title VII of the Civil Rights Act of 1964," as the complaint states hopefully.) The judge points out the obvious in the dismissal [PDF]: Plaintiff fails to state a § 1983 claim against Google. Plaintiff does not allege any facts suggesting Google is a government actor or was acting on behalf of the state. And then notes Abid's opposition to Google's motion to dismiss states Google shouldn't even be a party to this lawsuit. Moreover, Plaintiff’s Opposition appears to suggest that Google is not the proper defendant and that his claims in fact are against nonparty government entities. Opp’n at 3 (“My section 1983 claim should be applied against the US government, due to the gross negligence of both the FDA and the NIH[;] more than 1 year of work has gone into regulation for my small start-up only for FDA to trample my constitutional rights and NIH my civil rights.”). Accordingly, the Court DISMISSES Plaintiff’s § 1983 claim. As Plaintiff argues the FDA and NIH violated his rights, not Google, the dismissal shall be WITHOUT LEAVE TO AMEND. There's a Sherman Act (antitrust) claim buried in the lawsuit as well, but the court doesn't like that approach either. Plaintiff does not allege facts showing Google had a contract or agreement with LegitScript or any another entity that was intended to harm or unreasonably restrain competition. At most, Plaintiff alleges LegitScript was Google’s service provider. Mot. to Suppl. Pleadings ¶¶ 2, 12. But there are no facts showing Google sought to unreasonably restrain trade, let alone succeeded in doing so. This will probably only confuse the plaintiff, who so persuasively argued Google was once found guilty of antitrust violations in another country. I have attached proof Google has done anti-trustful things recently and has been punished by the EU. The court also finds Abid's ads violated Google policy, which states it will not permit pharmaceutical ads for non-government approved products that present themselves as proven remedies for illnesses. Everything is dismissed with Abid given a chance to amend his complaint to fix its numerous deficiencies. The only exception is the Section 1983 claim against Google, which is so far off base (Google isn't the government) that no amount of amending would fix it. There's a big difference between feeling wronged and being actionably wronged. This lawsuit doesn't even come close to the latter. At this point, Abid has only some wounded pride and outstanding AdWords bill for $88. Filing pro se keeps the costs down but it doesn't do much for coherent legal arguments. And we're probably all better off with Google blocking ads that claim faith-infused honey cures cancer. Permalink | Comments | Email This Story

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Remember when Republicans were against the "Fairness Doctrine"? Apparently, that's now out the window, so long as they can attack Facebook. As we noted recently, Senator Ted Cruz appears to be pushing for the strangest interpretation of Section 230 around (in direct conflict with (a) what the law says and (b) how the courts have interpreted it) saying that in order to make use of CDA 230's immunity "good samaritan" clause, internet service providers need to be "neutral." Again, that's not what the law says. It's also an impossible standard, and one that would lead to results that would piss off lots of people. The similarities to the FCC's concept of the "Fairness Doctrine" are pretty clear, though such a rule on the internet would be an even bigger deal, since the Fairness Doctrine only applied to broadcast TV. And, it appears that Cruz's incorrect interpretation is spreading like a virus. Senator Lindsey Graham is now spewing the same nonsense. Sen. Lindsey Graham (R-S.C.), a subcommittee chairman on the Senate Judiciary Committee, told MT that he remains concerned about potential bias when it comes to content moderation on social media platforms. “They enjoy liability protections because they’re neutral platforms. At the end of the day, we’ve got to prove to the American people that these platforms are neutral,” he said. “You’ve got to have a validating system where the government can come in and validate that this whole system is neutral.” So much about this is wrong. First, Section 230 of the CDA has never required platforms to be neutral. Indeed, it would be silly to do so because what the hell does "neutral" even mean in this context? Second, claiming that someone needs to "prove" that the platforms are neutral. What does that even mean? How would you prove that anything is "neutral" anyway? Finally, saying that the government has to validate that your internet service is neutral raises a very large number of very serious First Amendment questions. What kind of Senator is not only so wrong about the law, but thinks that the appropriate role of government is to "validate" internet platforms over what kind of speech they allow? Separately, this is the same Lindsey Graham who just recently was demanding that social media sites do more to takedown content he didn't like. Now, apparently, he's up in arms over the fact that the sites took down content he did like. If Graham truly wants websites to "do everything possible to combat" terrorist groups using the internet, then attacking CDA 230 is the worst possible way to do that. CDA 230 gives websites the power to moderate and filter out such content without fear of facing legal liability. In other words, it's an excellent tool for getting websites to takedown extremist content. To then turn around and insist that sites should lose CDA 230 protections because they also took down some content you like... raises all sorts of First Amendment issues. You're basically saying websites should only remove the content I dislike, and if they remove content I like I'm going to put their existence at risk. Guess what happens then? Sites will stop moderating entirely, leaving up more of the "bad" content you dislike. Oh, and back to that whole "fairness doctrine" thing. Guess who is vehemently against it? You guessed right: Lindsey Graham. Opposing the Fairness Doctrine is one of the few issues on his tech campaign platform and a few years back he put out a press release touting his conservative credentials including "barring the use of federal funds to re-instate the Fairness Doctrine" (which was silly anyway, because there was no appetite to re-instate the Fairness Doctrine). Except, now, as soon as he can pretend to be up in arms over Facebook, Graham seems to jump on the idea of a Fairness Doctrine for the internet. Not only that, but he seems to think it's already in place (it isn't) and requires the government to go in and validate platforms over what speech they allow. Permalink | Comments | Email This Story

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And now for the moment you've all been waiting for: a decision from the Ninth Circuit in the Monkey Selfie case. Upshot: the case remains dismissed, and the defendants get to recover attorney fees for the appeal. There's also relatively little to say on the copyright front. This case has turned almost entirely into litigation about standing and proven to be a significant wrench in the works for any future litigation anyone, but PETA in particular, might want to bring on behalf of animals. First, the court skewers PETA over the quality of its "friendship" with Naruto, casting significant side-eye towards PETA's apparent settlement of the lawsuit, which led to its attempt to dismiss the appeal, while at the same time leaving some question as to whether Naruto himself was down with this settlement and plan to dismiss his appeal. From footnote 3: We feel compelled to note that PETA’s deficiencies in this regard go far beyond its failure to plead a significant relationship with Naruto. Indeed, if any such relationship exists, PETA appears to have failed to live up to the title of “friend.” After seeing the proverbial writing on the wall at oral argument, PETA and Appellees filed a motion asking this court to dismiss Naruto’s appeal and to vacate the district court’s adverse judgment, representing that PETA’s claims against Slater had been settled. It remains unclear what claims PETA purported to be “settling,” since the court was under the impression this lawsuit was about Naruto’s claims, and per PETA’s motion, Naruto was “not a party to the settlement,” nor were Naruto’s claims settled therein. Nevertheless, PETA apparently obtained something fromthe settlement with Slater, although not anything that would necessarily go to Naruto: As “part of the arrangement,” Slater agreed to pay a quarter of his earnings from the monkey selfie book “to charities that protect the habitat of Naruto and other crested macaques in Indonesia.” See Settlement Reached: ‘Monkey Selfie’ Case Broke New GroundForAnimal Rights, PETA, https://www.peta.org/blog/settlementreached-monkey- selfie-case-broke-new-ground-animal-rights/ (last visited Apr. 5, 2018). But now, in the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed “friend” having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests. Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own. Puzzlingly, while representing to the world that “animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way,” see PETA, https://peta.org (last visited Apr. 5, 2018), PETA seems to employ Naruto as an unwitting pawn in its ideological goals. Yet this is precisely what is to be avoided by requiring next friends to have a significant relationship with, rather than an institutional interest in, the incompetent party—a point made by ChiefJustice Rehnquist in Lenhard v. Wolff, 443 U.S. 1306, 1312 (1979). See infra page 9 for exact language. But repudiating PETA's "next friend" standing doesn't end the inquiry. There is a 2004 case from the Ninth Circuit, Cetacean Community v. Bush, which established the precedent that animals might be able to sue for themselves, even without a "next friend" to do the suing for them. The court decides it has to defer to that precedent, although so reluctantly as to undermine its persuasive effect in future cases. Reaching that conclusion didn't end the inquiry, however. Cetacean Community means that animals might be theoretically able to sue for themselves in the Ninth Circuit, but it doesn't mean they will necessarily have a viable claim. To figure out whether they do, we have to look at the applicable statute, which in this case is the Copyright Act. And here the court concludes that Naruto, being a monkey, has no standing to sue for copyright infringement. Several provisions of the Copyright Act also persuade us against the conclusion that animals have statutory standing to sue under the Copyright Act. See Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989) (“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”). For example, the “children” of an “author,” “whether legitimate or not,” can inherit certain rights under the Copyright Act. See 17 U.S.C. §§ 101, 201, 203, 304. Also, an author’s “widow or widower owns the author’s entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author’s interest.” Id. § 203(a)(2)(A). The terms “children,” “grandchildren,” “legitimate,” “widow,” and “widower” all imply humanity and necessarily exclude animals that do not marry and do not have heirs entitled to property by law. Based on this court’s decision in Cetacean and the text of the Copyright Act as a whole, the district court did not err in concluding that Naruto—and, more broadly, animals other than humans—lack statutory standing to sue under the Copyright Act. So there you go. Our long national nightmare of not knowing whether any random monkey might be able to sue for copyright infringement has been resolved. We may now go about our lives confident in the knowledge that they cannot, at least not in the Ninth Circuit. Permalink | Comments | Email This Story

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iMazing calls itself the Swiss Army Knife of iPhone, iPad, and iPod management because it lets you truly manage your mobile data the way you want to. This all-purpose tool lets you easily browse and manage your backups, extract and print your text messages, drag and drop songs to your iPhone - all without jailbreaking your device. If you've ever upgraded or had to switch phones, you know the pain of leaving data behind. This license is on sale for $25. 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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Yes, the CIA made a card game. And... we're releasing it. No, really. If you want to play the top secret card game that the CIA used to train analysts, you can now back our Kickstarter project for CIA: Collect It All. Let me explain how we got here... We write a lot about the CIA here on Techdirt -- often covering just how secretive the organization is around responding to FOIA requests. After all, this is the same organization that invented the famous "Glomar Response" to a FOIA request: the now ubiquitous "we can neither confirm, nor deny." And that one "invention" is used all the time. Indeed, if you have a few extra hours to spend, feel free to go through just our archives demonstrating CIA obstructionism over FOIA. But... the organization actually did recently respond to a set of interesting FOIA requests. Back in 2017, at SXSW, the CIA revealed its gaming efforts, and even let some attendees play them. That resulted in a few FOIA requests for the details of the game, including one by MuckRock's Mitchell Kotler and another by entrepreneur Douglas Palmer. In response to the FOIA requests, the CIA released the details of some of the games (though, somewhat redacted, and in typical FOIA response gritty photo-copy style), including a card game called "Collection Deck." My first reaction was... "Hey, that would be fun to play..." And then I had a second thought. There's another super popular topic here on Techdirt: the public domain and how important it is to build on works in the public domain. Remember, under Section 105 of the US Copyright Act, works of the federal government of the United States are not subject to copyright and are in the public domain. We've already been working with Randy Lubin of Diegetic Games on a few different projects (including Working Futures and others you'll need to stay tuned for). So, we started talking about making a version of the CIA's game to play for ourselves. And everyone we mentioned it to wanted to play as well. And the more we looked at the details, the more we realized that we could make a much nicer version (while paying homage to the original and its route through FOIAdom) that was playable, and maybe even offer some changes, fixes and alternative rules. We decided to name our version, "CIA: Collect It All." Not only does "Collect It All" spell out CIA and pay homage to the CIA's "Collection Deck" name, "Collect It All" was also General Keith Alexander's surveillance motto that we roundly mocked due to its inherent conflict with the old 4th Amendment. Anyway, this seemed like a way to take back the phrase a bit. And that led us to Kickstarter. We're using Kickstarter in the real original sense of Kickstarter. We had an idea that we thought was pretty damn cool that we wanted for ourselves. And we want to see if others want it as well so we can produce it at scale. If people want it, awesome. We'll make a bunch. If we're wrong and no one really wants it... well, we'll probably still make a copy for ourselves, but you're on your own, working with redacted photocopies. So... here's a chance to: Get a cool, fun game that until just recently was a top secret training game by created by the CIA -- which, come on, is pretty cool Help support Techdirt and all the reporting we do (including reporting on the CIA pushing back on FOIA requests) Demonstrate why building on the public domain is a good thing Did I mention that you get to play a fun game, with awesome design work (much better than the CIA's), that was originally created by the CIA? So, check it out and back us on Kickstarter. And tell your friends. Because, look, they wanted to be CIA agents when they were kids too. Permalink | Comments | Email This Story

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Ever since the FBI began its "going dark" crusade, crucial questions have gone unanswered. Considering the budget and technical expertise the FBI has access to, why was it so necessary to get Apple to crack an iPhone's encryption for the Bureau? Turns out it wasn't. The FBI did have a solution, but the head of the division charged with cracking open the San Bernardino shooter's phone didn't want a technical solution. He wanted a courtroom solution. The report that outed the FBI's general disinterest in using outside contractors to crack encrypted devices is now being used against the FBI. Ten (bipartisan) legislators have signed a letter demanding answers from the agency about its anti-encryption efforts. The "going dark" narrative continues to be pushed by director Christopher Wray, despite recent reports showing at least two vendors have tools that can crack any encrypted iPhones. The tools are also much cheaper than the ~$1 million the FBI spent to open the shooter's phone, which raises questions about the agency's fiscal responsibilities to taxpayers. The letter [PDF] highlights portions of the Inspector General's report indicating the agency was less than motivated to find an outside solution while engaged in a legal battle with Apple. It also points to the thousands of devices the FBI says it can't access, despite the ready availability of vendor tools designed to do what the FBI continues to claim is impossible. These are the questions the legislators want answered -- questions we've been asking for months: Have you consulted with relevant third-party vendors to understand what tools are available to help the FBI access device content? Do you agree that there are solutions available to help unlock or nearly every device on the market? If not, why are these solutions, particularly the ones discussed above, insufficient? Why can't the FBI unlock the 7,800 devices? Have you attempted to use tools developed by third-parties to unlock these devices? Of these locked phones, how many are equipped with biometrics or how many have data available through a cloud service, which would provide additional means to access data or unlock phones? For each device that you have not used a third-party tool to unlock, what is the rationale for not doing so? These are all reasonable questions. But the FBI has been anything but reasonable when it comes to device encryption. Its director continues to insist -- despite zero tech expert support -- that safe and secure encryption backdoors are possible and that it's willing to sacrifice the public's security for "public safety." The FBI's disingenuous actions show it can't be trusted to handle the encryption debate honestly. Hopefully, this letter will reset the "conversation" by giving stakeholders insight into the fight the FBI appears to be throwing in hopes of being bailed out by legislators or federal judges. Permalink | Comments | Email This Story

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A few years ago, annoyance at John Deere's obnoxious tractor DRM birthed a grassroots tech movement. John Deere's decision to implement a lockdown on "unauthorized repairs" turned countless ordinary citizens into technology policy activists, after DRM and the company's EULA prohibited the lion-share of repair or modification of tractors customers thought they owned. These restrictions only worked to drive up costs for owners, who faced either paying significantly more money for "authorized" repair, or toying around with pirated firmware just to ensure the products they owned actually worked. The John Deere fiasco resulted in the push for a new "right to repair" law in Nebraska. This push then quickly spread to multiple other states, driven in part by consumer repair monopolization efforts by other companies including Apple, Sony and Microsoft. Lobbyists for these companies quickly got to work trying to claim that by allowing consumers to repair products they own (or take them to third-party repair shops), they were endangering public safety. Apple went so far as to argue that if Nebraska passed such a law, it would become a dangerous "mecca for hackers" and other rabble rousers. Apple's efforts in particular to monopolize repair run deep. The company has worked alongside the Department of Homeland Security and ICE to seize counterfeit parts in the United States and raid shops of independent iPhone repair professionals. FOIA efforts to obtain details on just how deeply rooted Apple is in ICE's "Operation Chain Reaction" have been rejected. The efforts to "combat counterfeit goods" often obscures what this is really about for Apple: protecting a lucrative repair monopoly and thwarting anybody that might dare repair Apple devices for less money. And Apple's efforts on this front are a decidedly global affair. More recently, Apple has been harassing an independent repair shop owner in Norway named Henrik Huseby. After Norway customs officials seized a shipment of 63 iPhone 6 and 6S replacement screens on their way to Huseby's repair shop, Apple threatened to sue the store owner unless they agreed to stop using aftermarket screens and pay a hefty settlement: "In order to avoid being sued, Apple asked Huseby for “copies of invoices, product lists, order forms, payment information, prints from the internet and other relevant material regarding the purchase [of screens], including copies of any correspondence with the supplier … we reserve the right to request further documentation at a later date." The letter, sent by Frank Jorgensen, an attorney at the Njord law firm on behalf of Apple, included a settlement agreement that also notified him the screens would be destroyed. The settlement agreement said that Huseby agrees “not to manufacture, import, sell, market, or otherwise deal with any products that infringe Apple’s trademarks,” and asked required him to pay 27,700 Norwegian Krone ($3,566) to make the problem go away without a trial." How sweet. Huseby decided to fight the case, and despite being out-manned five Apple lawyers to one, managed to win. And despite Apple's ongoing claims that it's simply engaged in a moral crusade against counterfeiters, Huseby's lawyer is quick to reiterate what Apple's methods are really all about: "In this case, Apple indirectly proves what they really want,” Per Harald Gjerstad, Huseby’s lawyer, told me in an email. “They want monopoly on repairs so they can keep high prices. And they therefore do not want to sell spare parts to anyone other than ‘to themselves.’" Apple's real motivation is the protection of their lucrative repair monopoly enjoyed thanks to their "Authorized Service Provider" program, which requires that repair companies become authorized by paying Apple a fee, only buy "authorized" repair parts from Apple at a fixed rate, and limits what repairs a third-party vendor can actually perform. Meanwhile, Apple continues to lobby against right to repair laws in 18 states around the United States, all of which require hardware vendors sell replacement parts and repair tools to the general public and independent repair companies. Ironically, the harder Apple and other companies fight against this trend, the more support they drive toward these right to repair bills. Permalink | Comments | Email This Story

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This week, our first place winner on the insightful side is an anonymous commenter with a response to the Goldman Sachs analyst asking whether curing patients is a sustainable business model: If curing patients is not a sustainable business model then perhaps health care should not be a for profit endeavor. Obviously, treating the symptoms will be much more profitable than curing the disease, however - what kind of an asshole verbalizes such revolting thoughts. Everyone has dumbass ideas, but most refrain from embarrassing themselves with same. In second place, we've got a comment from That Anonymous Coward in the discussion about his own recent Twitter suspension: The easiest solution is to make people use the tools they have been given. Dislike a word? Filter it. Think that users a tool? Block them. Reporting shouldn't be a weapon, it should be more like 911 when something serious is happening... not because McD's is out of fscking nuggets. Because everyone has a different level of comfort its impossible to have a single approach, and in trying to do it you just piss both sides off a bit more each time. For editor's choice on the insightful side, we've got a comment about the MPAA's quiet shutdown of its legal movie search engine. We noted that to succeed the company must innovate, and Personanongrata spelled out in more detail why they feel like they don't have to: Au contraire, MPAA can continue to hire lobbyists to shape the "law" in the industries favor while using the states security agencies (eg FBI, DHS) and courts to investigate industry related violations of the "law" at tax-payer expense. MPAA can also retain swarms of attorneys to harass/intimidate/litigate. Next, we've got an anonymous upgrade to our suggestion that pre-1972 sound recordings need to be unified under federal copyright law: Or how about we just put them in the public domain now? If someone hasn't made money in 46 years or more, the next 46 years are unlikely to be much more profitable. Over on the funny side, our first place comment comes from Roger Strong in response to our post about a copyright troll accusing Google, Popehat and BoingBoing of "black hat SEO": This guy doesn't care about his reputation. What he's desperate for is attention and relevance. Before trying to trash him via SEO, remember the old saying: "If only our tongues were made of glass. How much more careful we would be when we speak." John F. Kennedy In second place, we've got Capt ICE Enforcer with another response to the MPAA's search engine shutdown: Not good Great. Now I need to find a pirate site to show me where all the legal content is... For editor's choice on the funny side, we start out with Pixelation applying some Apple branding to the company's leaked memo warning employees not to leak stuff: Oh, the iRONY. And finally, we've got an anonymous comment about the New Hampshire first amendment ruling that said it's okay to call a patent troll a patent troll: Reminds me of the Brit who was haled into magistrate's court for calling a noblewoman "pig". The magistrate fined him. "So that means I can't call a duchess "pig"?" he asked. "No, you can't," the magistrate explained. "But can I call a pig "duchess"? "Yes." So he strolled out of the courtroom, nodding to the plaintiff and saying "Good day, duchess." That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago This week in 2013, as the fallout for Prenda Law continued, we shifted our focus to the cybersecurity bill CISPA. While the White House was threatening to veto it if the privacy issues were not addressed, the House was rejecting all the amendments that might actually do so and its sponsors were ignoring the fact that it would render online privacy agreements meaningless. Sponsor Mike Rogers (whose wife, surprise surprise, stood to benefit hugely from the bill) made his infamous comment about the only opposition being 14-year-olds in their basement, prompting rapid and widespread backlash. We knew from history how the bill would be abused, and the only amendment that was being truly considered was pretty toothless. Then, of course, the bill was passed by the House, with 288 supporters. Ten Years Ago This week in 2008, the threat to privacy was the DHS's domestic spy satellites — but more was happening on the copyright front, such as J. K. Rowling trying to use emotional appeals to block a Harry Potter guidebook and push silly legal theories like the idea that spoilers are copyright infringement. And Warner Bros. was threatening the filmmaker behind the movie Troll, which he was seeking to remake, because it happened to have a character named Harry Potter ten years before Rowling's books were written. Hollywood was starting to turn its attention to 3D movies as a way to revive cinemas, the recording industry was seeking more money because it deigned to let people transfer media between devices, and we took a look at how everyone overvalues content and undervalues services. Fifteen Years Ago This week in 2003, it was the ten-year anniversary of the release of Mosaic, the first "major" web browser. The entertainment industry was succeeding in its crusade against piracy within various organizations, with CIO Magazine telling corporations to worry about the legal issues of employee downloading, and a bunch of Naval Academy students being disciplined for sharing music. Copyright fears were holding back books about hacking and internet security research and — in an early precursor to the sort of sharing that would be formalized by CISPA a decade later — the government was asking corporations to hand over details on their infrastructure and just trust the agencies to keep it safe. Permalink | Comments | Email This Story

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posted 5 days ago on techdirt
This morning I saw a lot of excitement and happiness from folks who greatly dislike President Trump over the fact that the Democratic National Committee had filed a giant lawsuit against Russia, the GRU, Guccifier 2, Wikileaks, Julian Assange, the Trump campaign, Donald Trump Jr., Jared Kushner, Paul Manafort, Roger Stone and a few other names you might recognize if you've followed the whole Trump / Russia soap opera over the past year and a half. My first reaction was that this was unlikely to be the kind of thing we'd cover on Techdirt, because it seemed like a typical political thing. But, then I looked at the actual complaint and it's basically a laundry list of the laws that we regularly talk about (especially about how they're abused in litigation). Seriously, look at the complaint. There's a CFAA claim, an SCA claim, a DMCA claim, a "Trade Secrets Act" claim... and everyone's favorite: a RICO claim. Most of the time when we see these laws used, they're indications of pretty weak lawsuits, and going through this one, that definitely seems to be the case here. Indeed, some of the claims made by the DNC here are so outrageous that they would effectively make some fairly basic reporting illegal. One would have hoped that the DNC wouldn't seek to set a precedent that reporting on leaked documents is against the law -- especially given how reliant the DNC now is on leaks being reported on in their effort to bring down the existing president. I'm not going to go through the whole lawsuit, but let's touch on a few of the more nutty claims here. The crux of the complaint is that these groups / individuals worked together in a conspiracy to leak DNC emails and documents. And, there's little doubt at this point that the Russians were behind the hack and leak of the documents, and that Wikileaks published them. Similarly there's little doubt that the Trump campaign was happy about these things, and that a few Trump-connected people had some contacts with some Russians. Does that add up to a conspiracy? My gut reaction is to always rely on Ken "Popehat" White's IT'S NOT RICO, DAMMIT line, but I'll leave that analysis to folks who are more familiar with RICO. But let's look at parts we are familiar with, starting with the DMCA claim, since that's the one that caught my eye first. A DMCA claim? What the hell does copyright have to do with any of this? Well... Plaintiff's computer networks and files contained information subject to protection under the copyright laws of the United States, including campaign strategy documents and opposition research that were illegally accessed without authorization by Russia and the GRU. Access to copyrighted material contained on Plaintiff's computer networks and email was controlled by technological measures, including measures restricting remote access, firewalls, and measures restricting acess to users with valid credentials and passwords. In violation of 17 U.S.C. § 1201(a), Russia, the GRU, and GRU Operative #1 circumvented these technological protection measures by stealing credentials from authorized users, condcting a "password dump" to unlawfully obtain passwords to the system controlling access to the DNC's domain, and installing malware on Plaintiff's computer systems. Holy shit. This is the DNC trying to use DMCA 1201 as a mini-CFAA. They're not supposed to do that. 1201 is the anti-circumvention part of the DMCA and is supposed to be about stopping people from hacking around DRM to free copyright-covered material. Of course, 1201 has been used in all sorts of other ways -- like trying to stop the sale of printer cartridges and garage door openers -- but this seems like a real stretch. Russia hacking into the DNC had literally nothing to do with copyright or DRM. Squeezing a copyright claim in here is just silly and could set an awful precedent about using 1201 as an alternate CFAA (we'll get to the CFAA claims in a moment). If this holds, nearly any computer break-in to copy content would also lead to DMCA claims. That's just silly. Onto the CFAA part. As we've noted over the years, the Computer Fraud and Abuse Act is quite frequently abused. Written in response to the movie War Games to target "hacking," the law has been used for basically any "this person did something we dislike on a computer" type issues. It's been dubbed "the law that sticks" because in absence of any other claims that one always sticks because of how broad it is. At least this case does involve actual hacking. I mean, someone hacked into the DNC's network, so it actually feels (amazingly) that this may be one case where the CFAA claims are legit. Those claims are just targeting the Russians, who were the only ones who actually hacked the DNC. So, I'm actually fine with those claims. Other than the fact that they're useless. It's not like the Russian Federation or the GRU is going to show up in court to defend this. And they're certainly not going to agree to discovery. I doubt they'll acknowledge the lawsuit at all, frankly. So... reasonable claims, impossible target. Then there's the Stored Communications Act (SCA), which is a part of ECPA, the Electronic Communications Privacy Act, which we've written about a ton and it does have lots of its own problems. These claims are also just against Russia, the GRU and Guccifer 2.0, and like the DMCA claims appear to be highly repetitive with the CFAA claims. Instead of just unauthorized access, it's now unauthorized access... to communications. It's then when we get into the trade secrets part where things get... much more problematic. These claims are brought against not just the Russians, but also Wikileaks and Julian Assange. Even if you absolutely hate and / or distrust Assange, these claims are incredibly problematic against Wikileaks. Defendants Russia, the GRU, GRU Operative #1, WikiLeaks, and Assange disclosed Plaintiff's trade secrets without consent, on multiple dates, discussed herein, knowing or having reason to know that trade secrets were acquired by improper means. If that violates the law, then the law is unconstitutional. The press regularly publishes trade secrets that may have been acquired by improper means by others and handed to the press (as is the case with this content being handed to Wikileaks). Saying that merely disclosing the information is a violation of the law raises serious First Amendment issues for the press. I mean, what's to stop President Trump from using the very same argument against the press for revealing, say, his tax returns? Or reports about business deals gone bad, or the details of secretive contracts? These could all be considered "trade secrets" and if the press can't publish them that would be a huge, huge problem. In a later claim (under DC's specific trade secrets laws), the claims are extended to all defendants, which again raises serious First Amendment issues. Donald Trump Jr. may be a jerk, but it's not a violation of trade secrets if someone handed him secret DNC docs and he tweeted them or emailed them around. There are also claims under Virginia's version of the CFAA. The claims against the Russians may make sense, but the complaint also makes claims against everyone else by claiming they "knowingly aided, abetted, encouraged, induced, instigated, contributed to and assisted Russia." Those seem like fairly extreme claims for many of the defendants, and again feel like the DNC very, very broadly interpreting a law to go way beyond what it should cover. As noted above, there are some potentially legit claims in here around Russia hacking into the DNC's network (though, again, it's a useless defendant). But some of these other claims seem like incredible stretches, twisting laws like the DMCA for ridiculous purposes. And the trade secret claims against the non-Russians is highly suspect and almost certainly not a reasonable interpretation of the law under the First Amendment. Permalink | Comments | Email This Story

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posted 5 days ago on techdirt
Donald Trump's long time lawyer, Michael Cohen has been in a bit of hot water of late. As you no doubt heard, the FBI raided Cohen's office and home seeking a bunch of information, some of which related to the $130,000 he paid to adult performer Stormy Daniels. Already there have been a few court appearances in which Cohen (and Donald Trump) have sought to suppress some of what's been seized, but that doesn't seem to be going too well. At the same time, Cohen is still fighting Daniels in court, which also doesn't seem to be going too well. Given all of that, it's not too surprising that Cohen has decided to dismiss his ridiculous lawsuit against Buzzfeed for publishing the Christopher Steele dossier. As we pointed out, that lawsuit was going nowhere, because it sought to hold Buzzfeed liable for content created by someone else (oh, and that leaves out that much of what Cohen claimed was defamatory may actually have been true. And while many are suggesting Cohen dropped that lawsuit because the other lawsuits are a much bigger priority, there may be another important reason as well. As we noted last month, through a somewhat complex set of circumstances, the lawsuit against Buzzfeed may have resulted in Cohen having to reveal the details he's been avoiding concerning Stormy Daniels. That's because Buzzfeed was claiming that Cohen's interactions with Daniels were relevant to its case, and it was likely to seek that information as part of the case moving forward. In other words, dropping the Buzzfeed lawsuit (that he was going to lose anyway), Cohen wasn't just ditching a distraction in the face of more important legal issues, he may be hoping to cut off at least one avenue for all the stuff he's been trying to keep secret from becoming public. That doesn't mean it won't become public eventually. After all the DOJ has a bunch of it. But it does suggest that Cohen had more than one reason to drop the Buzzfeed lawsuit. Permalink | Comments | Email This Story

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If you spend any time at all in Techdirt's comments, you should be familiar with That Anonymous Coward. He's a prolific and regular commenter (with strong opinions). He also spends a lot of time on Twitter. Well, at least until a week or so ago when Twitter suspended his account. It's no secret that Twitter has been getting a lot of pressure from people to be more proactive in shutting down and cutting off certain accounts. There are even a bunch of people who claim that Twitter should suspend the President's account -- though we think that would be a really bad idea. As we've pointed out in the past, people who demand that sites shut down and suspend accounts often don't realize how difficult it is to do this at scale and not fuck up over and over again. Indeed, we have plenty of stories about sites having trouble figuring out what content is really problematic. Indeed, frequently these stories show that the targets of trolls and abusers are the ones who end up suspended. You can read TAC's open letter to Jack Dorsey, which also includes an account of what happened. In short, over a year ago, TAC responded to something Ken "Popehat" White had tweeted, and referred to himself -- a gay man -- as "a faggot." Obviously, many people consider this word offensive. But it's quite obvious from how it was used here that this was a situation of someone using the word to refer to himself and to reclaim the slur. Twitter then demanded that he delete the tweet and "verify" his phone number. TAC refused both requests. First, it was silly to delete the tweet because it's clearly not "hateful content" given the context. Second, as someone who's whole point is being "Anonymous" giving up his phone number doesn't make much sense. And, as he notes in his open letter, people have tried to sue him in the past. There's a reason he stays pseudononymous: Why do I have to supply a cell phone number to get back on the platform? I've been a user for 5 years and have never used a cell phone to access your service. I am a nym, but I am an established nym. I own the identity & amazingly there are several hundred people following my nym. I interact with the famous & infamous, they tweet back to me sometimes. I survived a few lawsuits trying to get my real name from platforms, because I called Copyright Trolls extortionists... they were offended & tried to silence me with fear of lawsuits. I'm still a nym, they've been indicted by the feds. There are other Copyright Trolls who dislike me, so staying a nym is in my best interest. TAC also points out the general inconsistencies in Twitter's enforcement, noting that other slurs are not policed, and even the slur that caused his account to be shut down (over a year after he used it) did not lead to other accounts facing the same issues. Incredibly, TAC points out that he appealed the suspension... and Twitter trust and safety rejected the appeal. It was only on the second appeal -- and seven days later -- that Twitter recognized its mistake and restored his account. Now, some may be quick to blame Twitter for this mess, but it again seems worth pointing out what an impossible situation this is. Platforms like Twitter are under tremendous pressure to moderate out "bad" content. But people have very little understanding of two important things: (1) the scale at which these platforms operate, and (2) how difficult it is to determine what's "bad" -- especially without full context. The only way to handle reports and complaints at scale is to either automate the process, hire a ton of people, or both. And no matter which choice you make, serious mistakes are going to be made. AI is notoriously bad at understanding context. People are under pressure to go through a lot of content very quickly to make quick judgments -- which also doesn't bode well for understanding context. So, once again, we should be pretty careful what we ask for when we demand that sites be quicker about shutting down and suspending accounts. You might be surprised who actually has their accounts shut down. That's not to say sites should never suspend accounts, but the rush to pressure companies into doing so represents a fundamental misunderstanding of how such demands will be handled. TAC's week-long forced sabbatical is just a small example of those unintended consequences. Permalink | Comments | Email This Story

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posted 5 days ago on techdirt
One of the main reasons FOSTA/SESTA is now law is because of Facebook's vocal support for the bill. Sheryl Sandberg repeatedly spoke out in favor of the bill, misrepresenting what the bill actually did. In our own post-mortem on what happened with FOSTA/SESTA we noted that a big part of the problem was that many people inside Facebook (incredibly) did not appear to understand how CDA 230 works, and thus misunderstood how FOSTA/SESTA would create all sorts of problems. Last month, we noted that there was some evidence to suggest that Facebook itself was violating the law it supported. However, a new article from Buzzfeed presents even more evidence of just how much liability Facebook may have put on itself in supporting the law. The article is fairly incredible, talking about how Facebook has allowed a group on its site that helps landlords seek out gay sex in exchange for housing -- and the report is chilling in how far it goes. In some cases, it certainly appears to reach the level of sex trafficking, where those desperate for housing basically become sex slaves to their landlords. Today, in the first instalment of this series, we uncover some of the damage done to these young men – the sexual violence – by landlords, and reveal how they are being enabled by two major internet companies, one of which is Facebook. The world’s largest social media platform, BuzzFeed News can reveal, is hosting explicit posts from landlords promising housing in return for gay sex. In multiple interviews with the men exchanging sex for rent and groups trying to deal with the crisis, BuzzFeed News also uncovered a spectrum of experiences that goes far beyond what has so far been documented, with social media, hook-up apps, and chemsex parties facilitating everything. At best, impoverished young men are seeking refuge in places where they are at risk of sexual exploitation. At worst, teenagers are being kept in domestic prisons where all personal boundaries are breached, where their lives are in danger. I've seen multiple people point out -- accurately -- that the article's focus on Facebook here is a little silly. The real focus should be on the "landlords" who are seeking out and taking advantage of desperate young men in need of a place to live. But, given that the focus is on Facebook, it certainly appears that Facebook has the knowledge required to be a violation of FOSTA/SESTA: Despite the explicit nature of the postings on the group’s site, the administrator told BuzzFeed News that Facebook has not intervened. “We have never had an incident from Facebook,” he said. “If they [members] want to post something that will not fly with Facebook I write them, and tell them what needs to be changed.” This has not stopped explicit notices being posted. When approached by BuzzFeed News to respond to issues relating to this group, Facebook initially replied promising that a representative would comment. That response, however, did not materialise, despite several attempts by BuzzFeed News, over several days, to invite Facebook to do so. A week after first contacting the social media company, the group remains on its site. It still seems wrong to blame Facebook for what the horrific landlords are doing here, but, hey, FOSTA/SESTA is now the law, and it's the law thanks in large part to Facebook's strong support for it. So, given all of this, will Facebook now face legal action, either from the victims of this group or from law enforcement? Permalink | Comments | Email This Story

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