posted about 1 month ago on techdirt
With copyright trolling a business model in full force across the world, we've noted that there has finally started to be some pushback against these tactics. In Europe, both courts and ISPs have begun wising up to the notion that IP addresses are an incomplete and faulty piece of "evidence" at best, with both government and industry also finally beginning to question just where user privacy should fit into all of this. In America, unfortunately, copyright trolls have all too often been able to unmask customers through ISPs based on court orders pretty much at will. Strike 3 Holdings is one such troll, with the company being partially responsible for a number of piracy lawsuits shooting out of the gate in 2018 at record speed. And, yet, it appears that there might finally be some pushback coming to the US too, as two judges in Minnesota have now refused to order ISPs to give up customer information to Strike 3. Late last month, Magistrate Judge Franklin Noel denied such a discovery motion. As a result, Strike 3 is not allowed to ask the ISP, Comcast in this case, for the personal details of the account holder associated with the IP-address. According to Judge Noel, these cases present a conflict between the copyright protections of the DMCA on the one hand and the privacy rights of the public as set out in the Communications Act. Here, the scale tips in the favour of the latter. Frankly, this reasoning should be plainly obvious. A copyright holder marching to an ISP with an IP address that does not pertain to an individual ought not be able to unmask that individual using such faulty evidence. It's long past time that the courts wise up to this and begin taking seriously the rights and interests of the public to not have private third party companies be able to associate them with their online activity. But this wasn't a one-off. Another court looked at Noel's ruling and decided it was sound. Last week Magistrate Judge David Schultz cited the ruling in two similar cases, also filed by Strike 3. Again, the subpoena requests were denied to secure the privacy of the alleged BitTorrent pirates. “From this Court’s perspective there are obvious tensions between DMCA, the Communications Act, and Federal Rule of Civil Procedure 45,” Schultz’s orders read. “The Court is not unsympathetic to Plaintiff’s need to discover the actual identity of the infringer of its copyright; however, the discovery sought by Plaintiff through a Rule 45 subpoena directly collides with federal privacy protections.” If this becomes a trend, what will be most interesting about it is that nothing in the laws in question has changed. Such a trend would represent instead an evolution of legal thought by judges on the practices of copyright trolls. It may also represent better informed defendants and ISPs that are aware of how shitty all of this is and also more aware of their respective rights in the law. To be sure, a couple of rulings is no cause to rest easy. The vast majority of copyright trolling efforts succeed in at least getting this sort of customer information. Still, hopefully other courts will take notice of these rulings and agree that they should not be rubberstamp stops on the way to violating consumer privacy. Permalink | Comments | Email This Story

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I trust that readers of this site young and old will be familiar with Dr. Dre. The wildly famous rapper has made hit records, produced some of the biggest names in hip hop, been a mogul in the music hardware space with his headphone line, and performed countless pelvic exams on women throughout the American northeast. Wait, that last part can't be right. Surely I was legitimately confused by the existence of Dr. Drai, an OB/GYN in Pennsylvania who dared attempt to get a trademark on his name for his doctor-ly practice. It seems that Dr. Dre has been locked in a trademark opposition with Dr. Drai going on three years, arguing that the absurd example of faked confusion above is actually likely to happen for real. Dr. Drai, a Pennsylvania-based gynecologist filed in 2015 to trademark his name and “Doctor Drai OBGYN & Media Personality." Dr. Dre tried to pump the brakes on that application, claiming it would cause confusion in the marketplace ... since their names sound alike. The gyno was born Draion M. Burch, but according to his application he's been going by Dr. Drai for years. He's authored books and makes public appearances using it. Dre's opposition is obviously, and hilariously, without merit. The whole point of trademark law is to keep the public from being confused as to the source of goods and services. Because of that, trademarks are valid only for given markets. Dr. Dre has a perfectly valid trademark case to make in the realm of music and entertainment. He has zero case to make in the realm of medical practices, no matter what stage name he chose to take all those years ago. In short, no woman is scheduling a visit with a gynecologist under the impression that the D.R.E. would be the one performing it. The trademark office, of course, agreed. The trademark office agreed with the medical doc, saying although the gangsta doc was well known ... there wasn't enough evidence people would be confused. Let's be honest ... no one's downloading "The Chronic" from a gyno. Although, sounds like there should be a shot for that. Point being ... the case was dismissed. Don't worry, Dre. We still won't forget about you. Permalink | Comments | Email This Story

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As you've probably seen, AT&T was recently exposed for paying $600,000 into a shady shell LLC operated by President Trump's "fixer" Michael Cohen. Initially, AT&T tried to claim that the company had simply hired Cohen for "insight" into President Trump. Granted, given AT&T could gain said insight into Trump from any number of its lawyers, lobbyists, above-board consultants (not to mention the ocean of politicians and regulators in its back pocket), the idea they'd pay an arguably dubious NYC "fixer" for such insight never really carried much weight. It seems fairly obvious at this point that AT&T was probably paying Cohen for additional access to the President. A leaked document provided to the Washington Post makes it clear that AT&T hoped to gain some advantage in its business before the FCC (net neutrality, privacy, protectionism, protecting the status quo of limited competition), and its efforts to gain regulatory approval for the company's $86 billion Time Warner merger: "A “scope of work” describing Cohen’s contract in an internal AT&T document shows that he was hired to “focus on specific long-term planning initiatives as well as the immediate issue of corporate tax reform and the acquisition of Time Warner.” He was also directed to “creatively address political and communications issues” facing the company and advise the company on matters before the Federal Communications Commission." There's every indication that this additional attention may have paid monumental dividends. While the Trump DOJ did sue to block AT&T's merger (DOJ antitrust chief Makan Delrahim wandering off script to actually defend antitrust law), the repeal of net neutrality and broadband privacy rules was a smashing success. AT&T has also had great success in its efforts to force NAFTA "reform" making it easier for AT&T to expand into the Mexican wireless market. And AT&T's luck has been stellar at the FCC, where the Commission majority (the makeup of which was dictated by AT&T lobbying) has rubber stamped AT&T's every desire, including the protection of its business broadband monopoly. As the scandal has grown, AT&T CEO Randall Stephenson was forced to admit the error of his ways in an e-mail to AT&T employees. Stephenson admitted the payments to Cohen were a mistake, but tried his best to pretend that this wasn't routine behavior for AT&T: "To be clear, everything we did was done according to the law and entirely legitimate. But the fact is, our past association with Cohen was a serious misjudgment. In this instance, our Washington D.C. team’s vetting process clearly failed, and I take responsibility for that. As somebody who has covered AT&T for decades now, I can assure you this Cohen payment is just a tiny portion of the greasy influence peddling AT&T engages in on a daily basis. The idea that this behavior wasn't perfectly in line with AT&T's "values" is laughable. And in a country where flimsy lobbying disclosure requirements are routinely tap danced around, trying to claim that this was all above board because you didn't violate any laws is akin to claiming you're an expert high jumper because you cleared a bar one inch off the damn ground. And despite the payment being well in line with AT&T's behavior, the company decided to throw top lobbying and policy man Bob Quinn under the bus as penance for its sins: "For the foreseeable future, the External & Legislative Affairs (E&LA) group will report to our General Counsel David McAtee. Bob Quinn, Senior Executive Vice President – E&LA, will be retiring. David’s number one priority is to ensure every one of the individuals and firms we use in the political arena are people who share our high standards and who we would be proud to have associated with AT&T." Bob Quinn had been on the job for less than two years after the retirement of former top lobbying and policy man Bob Cicconi. You may recall Quinn from such hits as AT&T's laughable efforts to pretend it supports net neutrality while simultaneously spending millions to dismantle popular federal net neutrality protections. And again, while paying Cohen to gain access to the President is certainly shady, it's well in line with AT&T's behavior over the last several decades. The question then becomes: will anybody actually do anything about any of it? AT&T's a shining example of how "creative" influence peddling has infected this country down to its marrow. From co-opting minority groups and creating fake consumer groups to undermine productive proposals, to using think tanks, hired consultants and academics to spread disinformation, testify as "objective" experts and write Op-Eds where financial ties are rarely disclosed, there's a universe of influence peddling and lobbying AT&T routinely engages in that existing U.S. laws don't even operate in the same dimension on. America has, time and time again, made it abundantly clear that this kind of influence peddling, lobbying and disinformation is not just perfectly legal, it's the norm. So whether this latest scandal results in substantive change or is just brushed aside as a one-off instance of bad judgement by just a few otherwise innocent companies will be interesting to see. Permalink | Comments | Email This Story

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If you've always wanted to build you own game console, but have no idea where to start, the DIY Game Console Kit V2 will show you the way. Everything's included, from the parts to the code — and even four retro games: Tetris, Snake, Racing, and Shooting. Add additional games by modifying the code or use it as is. It's a fun way to learn about DIY electronics in the name of retro '90s gaming. It's on sale for $17.99. 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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For many years now we've had fun pointing out the ridiculous claims of the legacy copyright industry execs insisting that copyright infringement funds terrorism. Of course, the evidence for this was seriously lacking. Back in 2011 there was an incredibly detailed, evidence-rich debunking of the claim by Joe Karaganis, showing basically no connection between terrorism and infringement. But, alas, it's a topic that never seems to go away. And now it appears that a design patent lawyer has updated the talking points to now claim that terrorists are infringing on design patents to fund their terroristic activity. First, as a quick refresher: when we talk about patents, we're usually talking about utility patents, which are a monopoly for a new invention or process. Design patents, on the other hand, are really more akin to trademarks, in that they grant a monopoly on the look of something. The idea that ISIS is out there infringing on, say, the look of someone's fancy belt buckle or a new planter is just sort of ludicrous on its face. But it certainly didn't stop big shot patent lawyer Robert Katz from making the claim at a recent event held by the US Patent and Trademark Office (who, really, should know better). The event was the USPTO's "Design Day" held a few weeks ago, in which there were a series of discussions on design patents and such. If you go to the Livestream of the event, about an hour in Katz starts out by playing up how crafty infringers are getting, saying that they're getting smarter about how they avoid getting caught: This is followed up by the other favorite concept that the copyright folks loved to use for years: totally and completely bogus numbers about losses of money and jobs. Notice, first that the "losses" in money lumps in all kinds of infringement, and almost certainly counts every infringement as a lost sale, even though that's clearly not the case. And job loss reports like this have been debunked so many times that it's almost embarrassing that anyone still uses those claims. Katz goes one better in talking about how "dangerous" products were introduced into the market, he gets to claim that knockoff makeup products were causing people to break out in rashes because they had "feces" in them. Indeed, there was just a seizure by the LAPD of some supposedly counterfeit makeup products, and the whole "feces" claim made a bunch of headlines (though, it's odd that half the stories call it "animal waste" and the other half call it "human feces.") There don't seem to be many details beyond a tweet from the LAPD -- an organization never known for exaggerating anything or making statements that are inaccurate. He also claims that sex traffickers are using infringement to fund their efforts (I thought they were using the trafficking to fund it, but... who knows?) But that's just the lead in to the really nutty claim. It all comes back to... TERRORISM! If you can't see that, the slide notes that infringers are "tied to terrorism" and he provides three "real life examples." From the slide: Charlie Hebdo shootings: There's a direct link between counterfeits and terrorism... "The sale of counterfeit goods went into buying these guns." 2004 Madrid train bombings: Terrorists sold counterfeit CDs to support their activities. 1993 World Trade Center bombing: Terrorists raising money by selling counterfeit goods. Let's leave aside that if this is such a big deal, why do we need to go back a quarter of a century to find three examples (and almost 15 years just to find a second example). Even the supposedly recent claim of the Charlie Hebdo attacks being a "direct" result of counterfeit sales is pretty suspect. You can find lots of headlines claiming this, but when you dig deep into the examples, no one provides any evidence. It's often cited by a trade group advocating for cracking down on counterfeits. After reading through many, many reports, the earliest reporting I can find on the claims about the Charlie Hebdo attackers relying on counterfeits comes from the LA Times story about intelligence lapses that allowed the attackers to go unnoticed. It mentions, in passing, that after getting out of jail for an earlier run-in with the law over possible terrorism, one of the attackers "seemed to be moving into less sinister pursuits, reportedly including trafficking in counterfeit clothing and shoes." That report also suggests that this counterfeiting activity had basically nothing to do with buying the weapons for the Charlie Hebdo attack. Instead, you get: U.S. intelligence officials have confirmed that at least one of the brothers traveled to Yemen in summer 2011, received training from Al Qaeda in the Arabian Peninsula and returned with about $20,000 in cash provided by the terrorist group. News reports have indicated that both brothers may have ventured to Yemen. Right. So, which is it. One of the attackers selling some counterfeit shoes... or getting trained by Al Qaeda and being handed $20,000. I think the latter seems just a bit more likely. But not to design patent lawyers like Katz. He concludes this slide by saying with a totally straight face: "It's not like it's something where people just got a little too close. Most of the time, when people are using design patents, it's to stop activities like this." Whaaaaaaaaaaaat? Most of the time that people are using design patents, it's to stop terrorist attacks like this? What the hell is Katz saying? No one is saying that counterfeiting of whatever things that are covered by design patents is okay -- though reports by both the GAO and the OECD have shown that claims of losses due to counterfeiting are highly exaggerated, and that in many cases there's little to no real harm, as buyers know they're buying counterfeit products, and it's an aspirational purchase (i.e., they can't afford the authentic version). Other reports have shown that those who buy counterfeits often by the real version when they can afford it. But, nope. According to Katz, "most of the time" design patents need to be used to stop terrorists such as those involved in the Charlie Hebdo shootings (never mind the cash from Al Qaeda). I don't know if people like Katz think the points he's spewing are accurate. He might. But if that's true, it just goes to show how silly confirmation bias can become. Design patents aren't protecting anyone against terrorism, let alone "most of the time." Saying things like that don't show how important design patents are. They show how silly people get when they get all wrapped up in artificial monopolies. Permalink | Comments | Email This Story

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As we've discussed, the looming Sprint T-Mobile merger is going to be decidedly ugly for American consumers. Global history has shown repeatedly that when you reduce the number of total competitors from four to three, you proportionally reduce any incentive to truly compete on price. Analysts have also predicted that anywhere between 10,000 and 30,000 retail, management, and administrative employees will lose their jobs as the bigger company inevitably eliminates redundant positions. Of course like any American merger, the two companies' CEOs have spent much of the last week trying to claim the exact opposite. Still, it's going to be an uphill climb for Sprint and T-Mobile to sell regulators on the deal, even for an administration that seems to take pride in undermining consumers and small businesses. To try and sell it, Sprint and T-Mobile have been trying to make the claim that the only way to ensure we have the fifth-generation (5G) networks of tomorrow is if we sign off on their competition-eroding megamerger: "It is critically important that America and American companies lead in the 5G era. Early U.S. leadership in 4G fueled a wave of American innovation and entrepreneurship that gave rise to today’s global mobile Internet leaders, creating billions in economic value and job growth. America’s early 4G leadership is credited with creating 1.5 million jobs and adding billions to the U.S. GDP. With 5G, the stakes are even higher – because 5G will be even more transformational." This plays in handily to the Trump administrations protectionist efforts to ban Chinese companies from the American market in order to "win the 5G race." The problem is that 5G isn't some magic wand. While it will provide us with faster, lower latency and more resilient wireless networks, it's not going to magically cure the fact that American broadband is ranked somewhere around 62nd in speed, and consumers pay some of the highest rates for mobile data in the developed world thanks to a telco monopoly over the fiber lines that feed cellular towers. Both T-Mobile and Sprint had been making it clear for months that they could deploy 5G easily and independently of each other. Suddenly we're being told that these next-gen networks are only made possible if we sign off on a deal history tells us will be arguably terrible for anybody other than AT&T, Verizon and SprinT-Mobile, who'll all have less motivation to engage in real price competition post merger. To try and sell this "only merging can deliver next-gen networks" argument, T-Mobile this week hired former FCC Commissioner Robert McDowell to make the same point in an op/ed over at Fortune: "The T-Mobile-Sprint merger will benefit our country and all Americans. From a farmer in Nebraska using 5G technology to better track crop conditions, to a small business owner in New Hampshire looking to sell products in the global marketplace, to a smart city with autonomous vehicles, all of us will depend on 5G. We can’t afford to lose the global race to develop this remarkable technology." In the piece's fine print you'll find that McDowell is now a paid T-Mobile advisor, which is a nice shift from outlets that can't be bothered to highlight op/ed author financial ties to industry. Again though, there's nothing "magical" about 5G that helps create smart cities, next-gen agricultural tools, and the automated cars of tomorrow. Those technologies can still thrive on 4G networks, and again, while 5G is going to provide some notable evolutionary improvements, it's not some kind of mystical panacea, and its impacts on our overall economy are being absurdly over-hyped by companies eager to sell networking hardware. There's numerous problems in the wireless sector that will persist throughout the "5G revolution," none of which get magically eliminated by reducing competition and killing tens of thousands of jobs. The merger doesn't magically fix AT&T and Verizon's backhaul monopoly. It doesn't address the fact that Americans pay more for wireless data that countless other developed nations. And it certainly doesn't solve the problem of regulatory capture, which is why American broadband (fixed or wireless) tends to be such a comical shitshow in the first place. Permalink | Comments | Email This Story

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The Second Circuit Appeals Court has revived a lawsuit brought by a group of Muslim men who allege the FBI placed them on the "no fly" list after they refused to become informants. This is not unusual behavior -- on the part of the FBI. Documents obtained by The Intercept show the CBP and FBI routinely pressure immigrants and visitors to become informants, threatening them with deportation or adverse decisions on visa requests. In this case, the lead plaintiff, Muhammad Tanvir, claims the FBI pursued him for months. The effort to convert Tanvir into an informant led to him being detained for hours any time he tried to fly, as well as being subjected to periodic visits from FBI agents at his workplace. Despite being a lawful resident, Tanvir was threatened with arrest and deportation for refusing to submit to a polygraph test. After returning from a trip to Pakistan to visit his family, Tanvir was detained for five hours by federal agents and his passport confiscated for six months. This confiscation was leveraged against Tanvir, with agents telling him he would be deported if he did not cooperate. These tactics are expressly forbidden by the DOJ and yet, they appear to be in common use. Tanvir's experience with the FBI roughly aligns with that of his co-litigants. They sued the FBI agents who harassed and threatened them, claiming the tactics violated their religious freedom. In the plaintiffs' view, becoming an informant meant violating their religious beliefs. The district court ruled they could not pursue these claims against the federal agents under the Religious Freedom Restoration Act (RFRA). The Appeals Court disagrees [PDF]. Violations and damages alleged by Tanvir -- including the inability to travel by air, which resulted in the loss of his job as well as prevented him from visiting his family in Pakistan -- can be recouped from the agents responsible. The government argued RFRA does not permit lawsuits against individual government employees. The Appeals Court points out the plain language of the statute clearly permits doing exactly that. RFRA’s use of the word “official” in the statutory definition of “government” does not mandate that a plaintiff may only obtain relief against federal officers in official capacity suits. In ordinary usage, an “official” is generally defined simply as “one who holds or is invested with an office” and is roughly synonymous with the term “officer.” Merriam‐Webster Unabridged, http:/unabridged.merriam‐webster.com/unabridged/official (noun definition). There is no reason to think that, in using this ordinary English word, Congress intended to invoke the technical legal concept of “official capacity,” rather than simply to state that government “officials” are amenable to suit. Moreover, the statute permits suits against “officials (or other person[s] acting under color of 7 law).” 42 U.S.C.A. § 2000bb‐2(1). The specific authorization of actions broadly against “other person[s] acting under color of law,” undercuts the assertion that the term “official”’ was intended to limit the scope of available actions. The wording of the statute is not as clear when it comes to defining "appropriate relief." The government argues this does not include money damages, even if the court finds individual agents can be sued under RFRA. The court again disagrees. Precedential decisions -- including those of the Supreme Court -- dealt with lawsuits brought against government officials in their official capacity. Sovereign immunity may have ended those attempts to obtain "appropriate relief," but are not helpful here. This suit is filed against agents personally, not against the agencies or the federal government as a whole. Although the Supreme Court and our sister circuits declined to construe the phrase “appropriate relief” to amount to an explicit waiver of sovereign immunity, Plaintiffs’ individual capacity suits against Defendants present no sovereign immunity concerns here. This is so because Plaintiffs seek monetary relief from those officers personally, not from the federal or state government. The government claimed this conclusion turns "appropriate relief" into "a chameleon," leaving the government unsure of where its stands when facing lawsuits under RFRA. The court points out the definition of the term "appropriate relief" is malleable because circumstances surrounding claims brought under the statute are rarely static or easily comparable. [W[e are tasked with interpreting the meaning of RFRA’s phrase “appropriate relief,” an inquiry that is “inherently context‐dependent.” Sossamon, 563 U.S. at 286. Indeed, the word ‘appropriate’ does not change its meaning; rather, the question addressed in each of these various contexts is what sort of relief is ‘appropriate’ in that particular situation. And, since the relevant animating principles vary appreciably across legal contexts, the meaning of ‘appropriate’ may well take on different meanings in different settings. Having decided the lawsuit can continue, the Appeals Court decides it doesn't need to reach a finding on the agents' qualified immunity assertions. This will be handled on remand by the lower court, which will first have to make this decision before deciding what (if any) damages the plaintiffs are entitled to. This is far from a victory for the plaintiffs but it does open the door for similar lawsuits against federal officers for harassment and intimidation tactics deployed in hopes of turning lawful residents and visitors into government informants. Raising the possibility of a successful lawsuit above the previously-presumed zero percent should hopefully act as a minor deterrent against future abuses of power. Permalink | Comments | Email This Story

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Over at MorningConsult I have an op-ed piece I co-wrote with Rachel Wolbers from Engine talking about why the continued attempt by Hollywood to portray debates over intermediary liability protections and fair use as being "tech" v. "creators" is completely misguided. As we've noted, Hollywood has used this framing to try to use the NAFTA renegotiations as a backdoor way to adjust US policy both here and in Canada and Mexico. And the end result would harm not just the internet but most creators who rely on the internet to create, promote, connect with fans, and to make money. If Congress and the courts have established a framework that has led to unprecedented growth of content creation and a booming technology industry, why would NAFTA negotiators weaken these rules through international trade agreements? Unfortunately, legacy copyright gatekeepers, such as the Motion Picture Association of America and the Recording Industry Association of America, are using their outsized influence in Washington to undermine internet safe harbors and rewrite copyright law to protect their bottom line. To do this, they are unfairly trying to pit content creators against the tech community. That argument may resonate inside the Beltway, but outside D.C., small tech companies and independent content creators work hand-in-hand to promote innovation and creativity. Startups and artists frequently work together to launch new platforms that help creators collaborate, share, distribute, promote, and monetize their content. And that makes sense because startups and artists know they must constantly hustle to grow their respective customer bases and attract investments and a following. To do this effectively, both groups need access to foreign markets so that they can scale. But they also need a legal framework that lets innovators pursue the same business models abroad that they do at home. And while Canada and Mexico remain the largest markets for U.S. startup exports, the internet has exponentially expanded the growth potential of entrepreneurs and artists alike. This trend will only continue if we continue to have a clear legal framework guiding how content can be shared. There's a lot more in the piece, so go check it out. And, as a reminder, we're still collecting stories of how you use the internet to create over at our site EveryoneCreates.org. Permalink | Comments | Email This Story

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We had just been talking about how Russia and Iran appeared to be taking similar, if not coordinated, actions to block the secure messaging app Telegram from their respective countries. While both countries couched the removal of this useful tool from its own people in the usual concerns over terrorism and national security, it was clear from the beginning that in both cases the concern was much more about dissent against the government rather than any actual violence. After all, with Telegram refusing to give away its encryption keys to these governments, the obvious interest by these countries is to be able to spy on the communications of their peoples. The reaction to these bans has, unfortunately, largely been of the shrugging variety. The reputations of Russia and Iran in America being what they are, some of it undeserved, many simply waved this away as authoritarian regimes doing what authoritarian regimes do. With perhaps a dash of Islamophobia mixed in when it comes to Iran, care for the impact on the people there appears to have gone out the window, too. After all, the Supreme Leader chose to block the app, so what is anyone to do? Well, it seems that, counter to the misconceptions many might have about the way Iran works, President Hassan Rouhani has come out criticizing the block on the app, saying both that he had nothing to do with it and that he disagrees with the move. In a post on Instagram, Rouhani clarified on Friday that the blocking of Telegram was not imposed by his government and that he did not approve of it. "If a decision has been made to restrict or block the communication of the people, the real owners of this country, which are the people, should be included in making such decisions," Rouhani said. The statement also said that the blockage was "opposite to democracy". Cynics and hardliners might wave this away as either a show by Rouhani, or simply of no consequence as it's the Surpreme Leader that holds the real control over the country. And the former might possibly be correct, but I doubt it. Rouhani, whatever else you might say about him, is indeed more liberal than the very conservative religious rulers in the country. He is also tasked with duties that are more to do with the public in Iran, whereas the Surpreme Leader is a religious figure first and politician second, interacting far more with the religious leaders in the country than people and politicians. It would not be a surprise for Rouhani's objection for this to be very, very real. And perhaps more practical than ideological, too. Rouhani had a front row seat to the Arab Spring that occurred in recent years in several countries in Persian and Arab nations. He saw first hand what happened when governments attempted to stave off dissent by clamping down on internet communication tools in this sort of heavy-handed way. I imagine he probably doesn't want his own country to repeat these mistakes. Permalink | Comments | Email This Story

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Remember when people kept insisting that the DMCA was never used for censorship? Yeah, about that. Last week, we were alerted to how a reporter from VentureBeat/Gamesbeat by the name of James Grubb had sent a DMCA notice for screenshots on a tweet by Jake Magee, who tweets under the account PhoxelHQ. Magee had taken a few screenshots of an article by Grubb and put up a tweet criticizing it. This is quintessential fair use, whether or not you agreed with Magee. Apparently Grubb wasn't thrilled about Magee adding some commentary to Grubb's game review, and did what any reasonable adult would do: run to the DMCA to shut up a critic: I have a bunch of concerns about this -- starting with the fact that unless VentureBeat gives its staffers their own copyrights, this is quite likely copyfraud, as the copyright would likely belong to VentureBeat, and Grubb is falsely claiming to be the copyright holder. I emailed VentureBeat to ask them who holds the copyright on its articles -- the company or the journalists -- and got no response. Ditto for my emailed question about whether or not they had any further comment on the situation. Grubb's response to all of this has been... bizarre to say the least. He first claimed that he filed the DMCA notice because the screenshots reproduced the article in full. But when Magee pointed out it was actually around 30% of the article, Grubb apologized but only for using the word "entire", and not for the fraudulent DMCA filing. Separately, Grubb has repeatedly claimed he wouldn't have sent the DMCA notice if Magee had provided a link to the original article. While providing a link might have been nice and courteous, it is, in no way, required. The whole point of fair use is that it is, by it's very nature, permissionless. If you needed permission, that would mean you need a license, and that by definition would mean it's not fair use. The conditions on fair use are set by the law and not by the copyright holder. If the conditions were set by the copyright holder, there wouldn't be any fair use at all (and, again, it's not even clear that Grubb is the copyright holder here!). What's striking about the Twitter discussion back and forth between Grubb and Magee is just how much it's clear that Grubb couldn't care less that he abused the law to silence someone. He makes repeated flippant and jokey comments about Magee and Magee's supporters, and his only apology was for falsely claiming that Magee posted the entire article. If section 512(f) of the Copyright Act had any actual force, Grubb might actually be in some legal hot water for filing a bogus DMCA notice. Lucky for him, the courts have mostly rendered it entirely toothless. Still, it remains incredible how many people see the DMCA as a "censor this thing I don't like" tool. Copyright is a tool for censorship, and you can argue that some of that censorship is completely reasonable and okay. But as a tool for censorship it is quite frequently abused. And this is just one more example. That it's being done by a journalist for a well known publication is that much more troubling. Permalink | Comments | Email This Story

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Nearly six months after the FCC voted to kill net neutrality protections, we finally have an official date for the formal elimination of the rules. According to an FCC announcement, (pdf) the FCC's comically-misleading "Restoring Internet Freedom" order will formally take effect on June 11, eliminating rules that have the bipartisan support of a huge majority of Americans (not to mention many of the people that built the damn internet). In a statement patting himself on the back for a job well done, FCC boss Ajit Pai simply doubles down on all of the routinely-debunked falsehoods his agency has used to justify the repeal up to this point, including the claim that killing consumer protections and pandering to Comcast somehow lowers prices and protects "free expression": "On June 11, we will have a framework in place that encourages innovation and investment in our nation’s networks so that all Americans, no matter where they live, can have access to better, cheaper, and faster Internet access and the jobs, opportunities, and platform for free expression that it provides." Of course if you've been following the net neutrality fight this claim is laughable. Giving telecom monopolies operating in a broken market unchecked authority to abuse a lack of competition will raise rates and stifle free expression in a myriad of ways. From bogus usage caps and zero rating to interconnection shenanigans (where ISPs use their power to drive up costs for transit and content competitors), these costs and unfair restrictions, sooner or later, will be dropped in the lap of consumers and smaller competitors alike. Meanwhile, Pai also tries to double down on the claim that next-generation networks are only made possible by gutting oversight of some of the least-liked and least-competitive companies in America. He also tries to float the idea that "special interests" (not an overwhelming, bipartisan majority of Americans) are to blame for the massive backlash to his repeal: "And we will embrace a modern, forward-looking approach that will help the United States lead the world in 5G, the next generation of wireless connectivity. For months, many politicians and special interests have tried to mislead the American people about the Restoring Internet Freedom Order. Now everyone will be able to see the truth for themselves." Yes, yes we will. Of course those expecting ISPs to immediately begin behaving badly don't understand how this works. ISPs are incredibly nervous that the FCC could lose in court, thanks to all of the bizarre missteps Pai's office made during the repeal. They're also worried about the fact that more than half the states in the nation are now pursuing their own net neutrality rules (something they maybe should have considered before rushing to kill modest federal rules). And there's also the looming threat of a future less cash-compromised Congress or FCC coming in and just re-instating the rules. This is why ISPs have been advocating (so far unsuccessfully) for a bogus net neutrality law in Congress (currently being pushed by Marsha Blackburn in the House and John Kennedy in the Senate). While these bills are being promoted as a "solution" to the longstanding debate that is net neutrality, their real intention is far more nefarious: to pass a flimsy, loophole-ridden net neutrality law designed specifically to pre-empt tougher federal or state laws (and block the FCC from restoring the 2015 rules should they lose in court). As ISP lobbyists nervously try to make the repeal permanent, ISPs will try to be on their best behavior for a while to try to suggest all of the concerns about the repeal are hyperbole. But it's important to understand, killing net neutrality is just one part of a much broader plan that involves effectively gutting nearly all FTC and FCC oversight of the broken telecom sector. Should that come to pass, the end result is not going to be subtle. Permalink | Comments | Email This Story

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The nation's largest, incumbent utilities continue to engage in some pretty shady behavior to try and stop the unstoppable renewable energy (r)evolution. In Florida, for example, we noted how one utility created an entirely bogus consumer group with one purpose: to hamstring solar competition. The group, "Consumers For Smart Solar," was built specifically by utilities to try and push legislation that claimed to support solar energy, but actually applied all manner of backward and obnoxious restrictions to the alternative energy industry. As these companies work to craft legislation that makes it harder on renewable competitors, they've ramped up the use of astroturfing to provide the illusion of broad consumer support for their efforts. Not to be outdone by their colleagues in Florida, one Louisiana utility appears to have hired a bunch of actors to express their enthusiastic support for the construction of a gas-based power plant that had been struggling with public approval. Locals had opposed the construction, arguing that claims that the plant was needed to shore up lagging capacity didn't hold up, and the utility should instead focus on modernization of existing lines. Local utilities didn't like that, so they hired a bunch of actors to cheer the plant's construction, and jeer any conversation about renewable energy alternatives at a meeting in New Orleans: "At least four of the people in orange shirts were professional actors. One actor said he recognized 10 to 15 others who work in the local film industry. They were paid $60 each time they wore the orange shirts to meetings in October and February. Some got $200 for a “speaking role,” which required them to deliver a prewritten speech, according to interviews with the actors and screenshots of Facebook messages provided to The Lens. “They paid us to sit through the meeting and clap every time someone said something against wind and solar power,” said Keith Keough, who heard about the opportunity through a friend. "Astroturfing," or the act of generating bogus grass roots public support for arguably unpopular policies, was a concept perfected by the broadband industry years ago. Whether it was paying people to attend meetings or the creation of bogus consumer groups to attack net neutrality, creating the illusion of support is a longstanding American tradition. It tends to be confusing to the general public, so by and large it's something traditional press outlets don't deem worthy of covering. But it routinely pollutes public discourse, and directly and routinely results in crap policy and law that doesn't reflect the will of the (actual) public. In this case, locals believe the actors were likely hired by a utility company by the name of Entergy through a company creatively named Crowds on Demand (there's a long list of companies that do this, though most like to operate under the radar). But Entergy denies the claim, and promises it will look into it and take "appropriate action if warranted": "“While we reiterate that Entergy did not pay, nor did we authorize any other person or entity to pay supporters to attend or speak at Council meetings, we recognize that our interactions with our stakeholders must always be based on honesty and integrity,” the company said. The company said it’s finalizing an investigation “to determine if anyone retained by the company has acted in any way inconsistent with these values. We will take swift and appropriate action if warranted." Because it's not illegal for companies to hire actors to actively mislead the public and corrupt the democratic process, nothing much comes of these revelations. And while these kinds of efforts obviously can't stop natural market evolutions like the shift toward renewable, lower-pollution alternative energy options, they certainly do a great job making meaningful evolutionary progress that much slower and cumbersome. Permalink | Comments | Email This Story

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The Essential Microsoft Excel Specialist Bundle will teach you the ins and outs of Excel. Start with the basics where you'll learn everything from spreadsheet terminology to how to insert graphics and charts. After mastering the basics, the next course takes you to the next level. You'll learn how to manage workbooks, track your changes, troubleshoot, and reduce your workload by automating repetitive tasks. This two course bundle is on sale for $9.99. 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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A little over a year ago, Matt Holt, who created the Caddy Server that helps make it easier to protect websites with HTTPS encryption, posted a hypothetical blog post, from the year 2022, in which he worried that enterprising and persistent copyright lawyers would have continued moving up the stack with their DMCA notices, and started to use the process to get HTTPS security certificates removed. A lawyer need only be successful in convincing one of those four “choke points” by threatening legal action in order to suffocate the site. (There are others, like ISPs, which operate more generally, and we skip them for brevity.) These entities totally control the site’s availability, which is one crucial dimension of secure systems. Here they are again:Site owner. He or she can voluntarily remove the site/content.Web host. They can destroy the site owner’s account or files.Domain registrar. They can cancel or transfer ownership of the domain name.DNS provider. They can make the site inaccessible via hostname. Now that it’s 2022, a site needs HTTPS in order to be trusted by browsers. At very least, this means they show an indicator above the page. Maybe it even means the browser shows a warning before navigating to the site. Either way, HTTPS is critical to a site’s availability and integrity. DMCA lawyers are clever, and they realize this emerging trend. They contact a site’s CA and demand the site be disconnected for violating the law (despite lack of a court case). The CA, operating without policy for such requests and afraid of legal ramifications, revokes the site’s certificate. Within hours, browsers begin to refuse connecting to the site on port 443 and warning flags fly instead, scaring users away. Browsers don’t revert to port 80 anymore because HTTPS is expected and using HTTP is effectively a downgrade attack. Visitors aren’t sure what to do, and the site goes offline around the globe. We've raised some questions in the past about this process of copyright holders moving up the stack -- and not just targeting the content hosts, but companies further upstream, including ad providers, domain registers and registrars, and the like. There are serious issues with each of these, but going after security certificates seems especially pernicious. But Matt was a bit off in his predicted timing on this. After his article ran, we learned of at least a few examples of copyright holders going after security certificate providers. Take for example this copyright notice that was sent to Squarespace (the host), Tucows (the domain register), and Let's Encrypt (the security certificate provider). And now TorrentFreak notes that Comodo has revoked Sci-Hub's HTTPS certificate. “In response to a court order against Sci-Hub, Comodo CA has revoked four certificates for the site,” Jonathan Skinner, Director, Global Channel Programs at Comodo CA informed TorrentFreak. “By policy Comodo CA obeys court orders and the law to the full extent of its ability.” Comodo refused to confirm any additional details, including whether these revocations were anything to do with the current ACS injunction. However, Susan R. Morrissey, Director of Communications at ACS, told TorrentFreak that the revocations were indeed part of ACS’ legal action against Sci-Hub. “[T]he action is related to our continuing efforts to protect ACS’ intellectual property,” Morrissey confirmed. We've obviously covered a lot about the Sci-hub story over the years, and the weird quixotic focus by some to take down a site focused on (of all things) better sharing academic knowledge (especially to academics in the developing world). It's already sickening enough the level to which some copyright holders have gone to effectively shut down a library, but going after the security certificate is beyond the pale. The DMCA allows for approaching a variety of different intermediaries, from network communications, to hosts, to caching, to "information location tools" (i.e. search engines), but I have a very difficult time seeing how any of that applies to security certificate providers (or, for that matter, to domain registers). Even more bizarre is that going after the security certificate doesn't stop any actual infringement -- it just makes users a lot less safe. And yet, it's coming from the very same copyright holders who keep trying to tell people they shouldn't pirate content because it exposes them to malware and viruses and dangerous computers and the like. But removing security certificates would make that a much more serious problem. And yet, here we have a case where ACS went after a security certificate, a judge okayed it, and Comodo played along. That's dangerous for the way the internet works and is kept secure. If they want to go after the hosts, go after the hosts. Destroying the ability to protect users by encrypting the traffic is just evil. Permalink | Comments | Email This Story

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For years, massive broadband providers (and the lawmakers and think tankers paid to love them) have repeatedly stated that gutting net neutrality and FCC oversight of ISPs is no big deal because the FTC will rush in and protect consumers. When ISPs like Comcast convinced the Trump FCC to kill net neutrality, they repeatedly proclaimed that the FTC would step in and ensure that nothing bad would happen. When ISPs lobbied Congress to kill off some modest consumer privacy protections, again they proclaimed that this was no big deal because the FTC would ride in and keep consumers safe from monopoly bad behavior. But while ISP lobbyists are claiming that neutering the FCC is a great idea because the FTC will fill the void, they consistently "forget" to mention that AT&T has been busy in court trying to gut FTC authority over ISPs entirely. You'd think that's kind of important to mention, but large ISP mouthpieces are understandably busy these days, so perhaps it just got lost in the lobbyist paperwork shuffle. AT&T's legal gambit began when the FTC sued AT&T back in 2014 for lying to customers about the company's throttling practices. You'll recall that AT&T had been waging a not-so-subtle war on unlimited data users as it tried to drive them to more expensive, metered plans. Amusingly, AT&T lawyers tried to argue in court that the company's "common carrier" status -- the same status it has fought viciously against on the net neutrality front -- exempted it from FTC authority almost entirely under Section 5 of the FTC Act. As we noted at the time, it was a very clever Schrodinger-esque tap dance. At the time, the FTC issued a warning stating that should AT&T lawyers be successful, any company with a common carrier component (from Google to oil conglomerates) could tap dance around FTC oversight. Those without such components could simply buy or merge with a small company with a common carrier component to nab the same benefit. This, the FTC warned, would create a massive accountability and enforcement gap regarding corporate America. Fortunately for consumers, AT&T's legal efforts have seen mixed results. AT&T won a major ruling in the case back in August of 2016, but the FTC won the most recent federal appeals court decision. Undaunted, AT&T made it clear this week that this is a battle it intends to take to the Supreme Court: "AT&T intends to file a petition for certiorari in the Supreme Court" by the deadline of May 29, according to a joint case management update filed last week. An AT&T victory could leave many ISPs in a regulation-free zone. The Federal Communications Commission in December 2017 voted to eliminate net neutrality rules and relinquish its authority to regulate ISPs as common carriers. One of the FCC's justifications for deregulating the broadband market was that the Federal Trade Commission can force ISPs to uphold their net neutrality promises." The goal remains little to no oversight of some of the least-competitive and most anti-competitive American companies in any industry. What could possibly go wrong? It's worth reiterating that even if the FTC wins this case, the agency remains a pale echo of the FCC when it comes to holding giant ISPs accountable. The FTC lacks rule-making authority, is already over-extended, and can only hold an ISP accountable if it can clearly prove the ISP engaged in "unfair or deceptive" behavior. That's something that's particularly problematic on the net neutrality front when anti-competitive behavior is routinely hidden behind bogus claims of routine network management. Granted if you really like growing monopolies running amok, this plan should be right up your alley. But if you realize that removing already pretty tepid oversight of an uncompetitive and broken telecom industry could cause vast irreparable harm to consumers and smaller businesses alike, then this is a case you most certainly should be keeping an eye on. Permalink | Comments | Email This Story

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We've talked a bunch about the GDPR recently. While the effort is well-meaning (some may disagree with this) and does have some good ideas concerning data control and transparency, we still feel that it was put in place by people who had little idea of the impact it would actually have, and will have disastrous consequences on online speech, in particular. And, since the GDPR has a long-arm aspect that will impact people across the globe (not just in the EU), there has been plenty of scrambling by companies to "become compliant" with the GDPR. This is almost certainly going to lead to a huge number of lawsuits over the next few years, with an awful lot of uncertainty. While some consultants have cleaned up in helping companies become what they hope is "compliant" (hence you probably receiving dozens of updated privacy agreements and terms of service notices lately), some companies have realized it's just too much of a hassle and decided to block all access to EU users. F-Secure's Mikko Hypponen has been tracking a bunch of examples and also highlighted a (currently offline, but can be seen at the Internet Archive) site called GDPR Shield that gives you some simple javascript to block EU visitors (assuming they have Javascript turned on, and their location is determined accurately -- both of which may be big assumptions). Among those that Hypponen has noted cutting off EU users are the following: Ragnarok Online, Verve, Brent Ozar, Unroll.me, SMNC, Tunngle, Drawbridge and Steel Root. Hypponen also notes the very different reactions to all of this from EU readers and US readers. EU folks seem to be generally supportive of the GDPR and think that companies shutting down service are either stupid & ignorant or evil and thus should shut down. On the US side, he notes people are smug about how this serves the EU right and will harm the EU. It's entirely possible both are right. But the larger issue to me is how this is increasingly splintering the internet, and doing so in a way that we're not entirely prepared for. The GDPR has significant problems -- even if it does also have some good stuff. The fact that it feels like supporters of the GDPR refuse to fix the problems seems troubling. It's going to have quite an impact and there seems to be little concern among those who support it. They automatically default to the idea that opposing the GDPR means that you want to do something bad, no matter how inaccurate that statement is. It would have been much better if those crafting the GDPR had actually bothered to listen to the wider concerns. And, barring that, if they hadn't made the reach of the law go so far beyond EU borders where it will rule over the internet and the rest of us have to deal with. They could have preserved some of the good ideas concerning control and transparency, without creating so much of a mess for everything else. But they chose not to, and now we're all going to leap off the cliff together and see how everyone ends up. Permalink | Comments | Email This Story

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Law enforcement agencies have embraced facial recognition. And contractors have returned the embrace, offering up a variety of "solutions" that are long on promise, but short on accuracy. That hasn't stopped the mutual attraction, as government agencies are apparently willing to sacrifice people's lives and freedom during these extended beta tests. The latest example of widespread failure comes from the UK, where the government's embrace of surveillance equipment far exceeds that of the United States. Matt Burgess of Wired obtained documents detailing the South Wales Police's deployment of automated facial recognition software. What's shown in the FOI docs should worry everyone who isn't part of UK law enforcement. (It should worry law enforcement as well, but strangely does not seem to bother them.) During the UEFA Champions League Final week in Wales last June, when the facial recognition cameras were used for the first time, there were 2,470 alerts of possible matches from the automated system. Of these 2,297 turned out to be false positives and 173 were correctly identified – 92 per cent of matches were incorrect. That's the most gaudy number returned in response to the records request. But the other numbers -- even though they contain smaller sample sets -- are just as terrible. The following table comes from the South Wales Police FOI response [PDF]: In all but three cases, the number of false positives outnumbered positive hits. (And in one of those cases, it was a 0-0 tie.) The police blame the 2,300 false positives on garbage intake. A spokesperson for the force blamed the low quality of images in its database and the fact that it was the first time the system had been used. The company behind the tech insists this is an end user problem. The company behind the facial recognition system, NEC, told ZDNet last year that large watchlists lead to a high number of false positives. And it illustrates this with a highly-questionable analogy. "We don't notice it, we don't see millions of people in one shot ... but how many times have people walked down the street following somebody that they thought was somebody they knew, only to find it isn't that person?" NEC Europe head of Global Face Recognition Solutions Chris de Silva told ZDNet in October. I think most people who see someone they think they know might wave or say "Hi," but only the weirdest will follow them around attempting to determine if they are who they think they are. Even if everyone's a proto-stalker like NEC's front man seems to think, the worst that could happen is an awkward (and short) conversation. The worst case scenario for false positives triggered by law enforcement software is some time in jail and an arrest record. The personal stake for citizens wrongly identified is not even comparable using de Silva's analogy. If large watchlists are the problem, UK law enforcement is actively seeking to make it worse. Wired reports the South Wales Police are looking forward to adding the Police National Database (19 million images) to its watchlist, along with others like drivers license data stores. No matter what the real issue is here, the South Wales Police believe there are no adverse effects to rolling out facial recognition tech that's wrong far more often than it's right. It states it has yet to perform a false arrest based on bogus hits, but its privacy assessment shows it's not all that concerned about the people swept up by poorly-performing software. South Wales Police, in its privacy assessment of the technology, says it is a "significant advantage" that no "co-operation" is required from a person. Sure, it's an "advantage," but one that solely serves law enforcement. It allows them to gather garbage images and run them against watchlists while hoping the false hits won't result in the violation of an innocent person's rights. But that's all they have: hope. The tech isn't ready for deployment. But it has been deployed and UK citizens are the beta testing group. So, it will come as an unpleasant non-surprise that Axon (Taser's body cam spinoff) is looking to add facial recognition tech to cameras officers are supposed to deploy only in certain circumstances. This addition will repurpose them into always-on surveillance devices, gathering up faces with the same efficiency as their automated license plate readers. False positives will continue to be a problem and deployment will scale far faster than tech advancements. Permalink | Comments | Email This Story

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Law enforcement agencies have embraced facial recognition. And contractors have returned the embrace, offering up a variety of "solutions" that are long on promise, but short on accuracy. That hasn't stopped the mutual attraction, as government agencies are apparently willing to sacrifice people's lives and freedom during these extended beta tests. The latest example of widespread failure comes from the UK, where the government's embrace of surveillance equipment far exceeds that of the United States. Matt Burgess of Wired obtained documents detailing the South Wales Police's deployment of automated facial recognition software. What's shown in the FOI docs should worry everyone who isn't part of UK law enforcement. (It should worry law enforcement as well, but strangely does not seem to bother them.) During the UEFA Champions League Final week in Wales last June, when the facial recognition cameras were used for the first time, there were 2,470 alerts of possible matches from the automated system. Of these 2,297 turned out to be false positives and 173 were correctly identified – 92 per cent of matches were incorrect. That's the most gaudy number returned in response to the records request. But the other numbers -- even though they contain smaller sample sets -- are just as terrible. The following table comes from the South Wales Police FOI response [PDF]: In all but three cases, the number of false positives outnumbered positive hits. (And in one of those cases, it was a 0-0 tie.) The police blame the 2,300 false positives on garbage intake. A spokesperson for the force blamed the low quality of images in its database and the fact that it was the first time the system had been used. The company behind the tech insists this is an end user problem. The company behind the facial recognition system, NEC, told ZDNet last year that large watchlists lead to a high number of false positives. And it illustrates this with a highly-questionable analogy. "We don't notice it, we don't see millions of people in one shot ... but how many times have people walked down the street following somebody that they thought was somebody they knew, only to find it isn't that person?" NEC Europe head of Global Face Recognition Solutions Chris de Silva told ZDNet in October. I think most people who see someone they think they know might wave or say "Hi," but only the weirdest will follow them around attempting to determine if they are who they think they are. Even if everyone's a proto-stalker like NEC's front man seems to think, the worst that could happen is an awkward (and short) conversation. The worst case scenario for false positives triggered by law enforcement software is some time in jail and an arrest record. The personal stake for citizens wrongly identified is not even comparable using de Silva's analogy. If large watchlists are the problem, UK law enforcement is actively seeking to make it worse. Wired reports the South Wales Police are looking forward to adding the Police National Database (19 million images) to its watchlist, along with others like drivers license data stores. No matter what the real issue is here, the South Wales Police believe there are no adverse effects to rolling out facial recognition tech that's wrong far more often than it's right. It states it has yet to perform a false arrest based on bogus hits, but its privacy assessment shows it's not all that concerned about the people swept up by poorly-performing software. South Wales Police, in its privacy assessment of the technology, says it is a "significant advantage" that no "co-operation" is required from a person. Sure, it's an "advantage," but one that solely serves law enforcement. It allows them to gather garbage images and run them against watchlists while hoping the false hits won't result in the violation of an innocent person's rights. But that's all they have: hope. The tech isn't ready for deployment. But it has been deployed and UK citizens are the beta testing group. So, it will come as an unpleasant non-surprise that Axon (Taser's body cam spinoff) is looking to add facial recognition tech to cameras officers are supposed to deploy only in certain circumstances. This addition will repurpose them into always-on surveillance devices, gathering up faces with the same efficiency as their automated license plate readers. False positives will continue to be a problem and deployment will scale far faster than tech advancements. UPDATE: Axon apparently takes issue with the final paragraph of this post. It has demanded a correction to remove an unspecified "error" and to smooth the corners off some "bold claims." Here's Axon's full statement: At this point in time, we are not working on facial recognition technology to be deployed on body cameras. While we do see the value in this future capability, we also appreciate the concerns around privacy rights and the risks associated with misidentification of individuals. Accordingly, we have chosen to first form an AI Ethics Board to help ensure we balance both the risks and the benefits of deploying this technology. At Axon we are committed to ensuring that the technology we develop makes the world a better, and a safer place. If there's anything to be disputed in the last paragraph of the post, it might be "looking to add facial recognition tech to its cameras." But more than one source (including the one linked in the paragraph) make the same claim about Axon looking at the possibility of adding this tech to its body camera line, so while Axon may not be currently working on it, it appears to be something it is considering. The addition of an ethics board is certainly the right way to approach this issue and its privacy concerns, but Axon's statement does not actually dispute the assertions I made in the post. As for the rest of the paragraph, I will clarify that I did not mean Axon specifically will push for body cameras to become ALPRs but for faces. Axon likely won't. But police departments will. If the tech is present, it will be used. And history shows the tech will be deployed aggressively under minimal oversight, with apologies and policies appearing only after some damage has been done. To be certain, accuracy will be improved as time goes on. But as the UK law enforcement efforts show, deployment will far outpace tech advancements, increasing the probability of wrongful arrests and detentions. Permalink | Comments | Email This Story

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If you're a gamer, you know all about loot boxes. We haven't covered them or the associated controversy here, as both are slightly outside of the usual topics we cover. But we do in fact cover digital marketplaces and how companies and industries react to market forces and it's becoming more clear that the gaming industry and the gaming public are on something of a collision course over loot boxes. As a primer, a loot box is a digital randomized thing, typically purchased in-game and resulting in a random reward of in-game content. Some content is more valuable than others, leading to some referring to loot boxes as a form of gambling, particularly when some of the game content can provide benefits to players in multiplayer settings. Overwatch popularized loot boxes somewhat in 2016, although mobile games have used some flavor of this kind of monetization for pretty much ever. The gaming public never really liked this concept, with many arguing that it breaks in-game competition by giving players willing to pay for loot boxes an advantage. But the loot box fervor hit its pique after the release of Star Wars Battlefront 2, with EA being forced to massively alter how its loot boxes worked in game. Since then, loot boxes are a topic of consumer backlash as a general rule. Making it somewhat strange, therefore, that the gaming industry seems to want to embrace loot boxes as its dominant business model. With all the controversy, scrutiny, and international regulation randomized video game loot boxes are facing these days, you might think the practice of charging players for a chance at unknown in-game items might be set for a precipitous decline. On the contrary, though, one analyst sees spending on loot boxes increasing by over 62 percent in the next four years to become a $47 billion piece of the industry. By then, loot boxes will represent over 29 percent of all spending on digital games, the analyst said, up from just under 25 percent currently. In a newly published forecast of the global game market, Juniper Research concedes that developers are "effectively encouraging a form of in-game gambling" with loot boxes and using that addictive potential to "extend both the lifecycle and engagement of games titles to their audience." These kinds of non-traditional money-making techniques are a practical necessity for developers squeezed by increasing costs and stagnant or declining up-front game prices, Juniper says. Whatever your opinion of loot boxes, it should be clear that there is trouble on the horizon. Individual opinions will vary, but it seems clear that the majority of gamers are strongly against loot boxes, and that majority is very, very loud. Put another way, the vocal reaction to loot boxes is almost universally negative, with barely anyone at all praising their use in games. The market is sending the gaming industry a very clear message and the industry has apparently decided to place an awful lot of poker chips in dismissing that message. Even governments are getting in on the backlash, actually, for a variety of reasons. Some seek to protect consumers from blatant attempts to extract more revenue from them by gamemakers, while others want loot boxes regulated as a form of gambling. Yet the gaming industry is so all-in on this that Juniper thinks both the public and governments will allow loot boxes to exist merely because gamemakers are making so much money off of them right now. "Whilst some restrictions may be put in place by government and regulatory bodies, the practice is unlikely to be banned outright simply due to the effect it would have on the games industry as a whole," Juniper writes in a recent white paper on the subject. And while platforms like Steam have recently cracked down on third-party "skin gambling" sites, Juniper argues they've resisted calls to ban skin trading altogether for the simple reason that they make too much money from their five-percent transaction fee. That all works at the governmental level, where regulatory capture is indeed a thing and monied interests likely will indeed sway politicians, but the market forces in the public are another matter. Already the public has thought of loot boxes as generally abusive of the industry. Free to play mobile games are one thing, but the moment EA tried this in a paid-for console game, the shit hit the fan. Loot boxes aren't the only business model available to the gaming industry, but they are fairly unique in how disliked they are. If the gaming industry doesn't correct course soon, we could easily see a slowdown in an industry otherwise primed for massive growth. Permalink | Comments | Email This Story

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"Excited delirium" makes an appearance in another case where medical help for a mentally ill person was sought, but instead, police arrived and delivered someone to an early grave. (h/t Radley Balko) 22-year-old Adam Trammell was spotted wandering the halls of his group home completely naked. Feeling the young man was experiencing a psychotic break, the neighbor whose door Trammell had knocked on called the police. When officers arrived, they found Trammell in a distinctly non-threatening state: naked in the shower. The first officer to reach for Trammell was pushed away. After that, the deluge began. Two West Milwaukee police officers who broke down a mentally ill man's door and tased him in the shower 18 times before he died will not be criminally charged, Milwaukee County District Attorney John Chisholm has decided. More than 30 minutes elapsed between the first time the officers deployed their Tasers and the time Adam Trammell lost consciousness in the hallway of his apartment building, known to officers as a place that housed people with mental illnesses, according to police reports. In between, Trammell suffered a black eye, a broken rib and more than two dozen cuts and bruises, according to the medical examiner's report. On the officers' body camera footage, Trammell can be heard screaming in agony. He spent some of his last conscious moments vomiting profusely. As is noted in the article, none of the officers will be charged. The DA's office [PDF] has already cleared them of wrongdoing, claiming the force was not excessive and there was no malicious intent present in responding officers. All they wanted to do was "help." And they helped the only way they knew how: by hurting. Trammell did not respond to verbal commands, so naturally officers deployed their Tasers, hitting a naked, wet man standing in his own bathroom multiple times with five-second cycles. In between tasings, Trammell was told to "relax" and stand up. Officers claim in the recap [PDF] of the body cam video that Trammell was "resisting" and "not following orders." In order to achieve their goal of bringing Trammell to a waiting ambulance, officers felt the need to tase Trammell roughly every 30 seconds for nine straight minutes. The coroner's report cleared the officers. Manner of death: undetermined. Cause of death? Excited delirium. The DA's report notes there is some skepticism about whether or not "excited delirium" is a real thing (rather than a convenient cause of death determination hand-rolled by Taser's in-house counsel) but ultimately decides to side with the coroner. This means the DA has decided to side with Taser against science, as no medical body (the American Medical Association and American Psychological Association) recognizes "excited delirium" as an authentic medical condition. If nothing else, the actions taken by the responding officers appears to violate departmental policy. According to the policy quoted in the DA's report, officers are instructed to minimize use of restraint or engage in physical struggles. They are also supposed to hold off on Taser deployments until EMS is on the scene, and then only if absolutely necessary to approach the subject. Officers are also told to use force only in cases where the subject presents a danger to others. In this case, the EMS unit does not appear to have arrived until after the routine, repeated tasings began. Considering Trammell's condition and location -- soaking wet in bathroom whose floor was "covered with water" -- the decision to deploy an electric shock seems to have posed more danger to Trammell and the officers than anything Trammell himself was doing, or could possibly have done. According to police reports, no one officers spoke to expressed a concern Trammell might harm others. Every single person recorded stated they were worried Trammell might harm himself. If this was the only concern, allowing the situation to de-escalate would not have resulted in harm to Trammell, who was naked, contained in a small room, with no apparent access to weapons. Even the Taser deployments were sloppy. An additional Taser deployment, triggered by one officer after a discussion with other officers about the limited utility of their Tasers, is given the instant exoneration treatment in the officer's report. The unbelievable wordsmithery conjures up a dangerous electronic device that apparently triggers itself if it senses people are talking about it. Rohleder pulled the trigger of his Taser one more time from the hallway, while the leads to its wires were still embedded in Trammell’s body. Rohleder told investigators “this was not an intentional deployment, but occurred spontaneously when the West Allis police asked him if the Taser wires were still connected,” according to Chisholm's letter. No officers will be charged. It's quite possible no one will even be disciplined, despite their inability to follow internal policies. A man who posed no threat to anyone but himself died at the hands of officers who simply couldn't fathom why a schizophrenic man who was found wandering the halls naked muttering about the devil wouldn't quickly respond to shouted commands by strangers who had barged into his bathroom to "save" him. Permalink | Comments | Email This Story

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In case you missed it, last month Gibson, the famed guitar company, filed for bankruptcy. Matt LeMay has a really fascinating and worth reading Medium post up, claiming that Gibson's failure is a "cautionary tale about innovation." He compares what Gibson's management did over the past few years to another big name in guitars: Fender. And finds quite a telling story in the contrast. Specifically, he notes that Gibson doubled down on "innovation" and trying to come up with something new -- almost none of which really seemed to catch on, while more or less ignoring the core product. Meanwhile, Fender took a step back and looked at what the data showed concerning what its existing customers wanted, and realized that it wasn't serving the customer as well as it could. LeMay points to a Forbes interview with Fender CEO, Andy Mooney, where he explains: “About two years ago we did a lot of research about new guitar buyers. We were hungry for data and there wasn’t much available. We found that 45% of all the guitars we sell every year go to first-time players. That was much higher than we imagined. Ninety percent of those first-time players abandoned the instrument in the first 12 months — if not the first 90 days — but the 10% that didn’t tended to commit to the instrument for life and own multiple guitars and multiple amps. We also found that 50% of new guitar buyers were women and that their tendency was to buy online rather than in a brick and mortar store because the intimidation factor in a brick and mortar store was rather high. The last thing we found was that new buyers spend four times as much on lessons as they do on equipment. So that shaped a number of things. It shaped the commitment we made to Fender Play because we felt there was an independent business opportunity available to us that we’d never considered before because the trend in learning was moving online. We also found we needed to communicate more to the female audience in terms of the artists we connect with, in terms of using women in our imagery and thinking generally about the web.” The end result is two very different approaches to innovation. LeMay points out that this is perfectly demonstrated in what you see when you go to each company's website: A cursory glance at Fender’s website tells you a lot about how the company has implemented their findings: pictures of women playing their instruments dominate, and the “Fender Play” platform for learning how to play guitar is given equal billing with the guitars themselves. (Gibson’s website, on the other hand, features a picture of Slash with the headline “global brand ambassador” — a noxious and deeply company-centric piece of marketing jargon if ever there was one.) It's a really good point, though I think it's slightly misplaced to argue that the problem was Gibson's focus on "innovation." The problem is Gibson's focus on something new and shiny without paying enough attention to what people actually wanted. If you've done anything in product development ever, you've probably heard the famous (and probably apocryphal) Henry Ford quote: “If I had asked people what they wanted, they would have said faster horses.” This is often deeply embedded in the minds of people who are quite sure they're coming up with the next great thing. And it's rarely actually true. There are exceptions, of course, but they are really few and far between. True innovation tends to come from better understanding what people actually want to accomplish and then helping them better do that. Sometimes it's coming up with something new. Sometimes it's coming up with a new way to sell. Or a more convenient way to use something. Or a better business model. Or a better way to educate. There are all sorts of innovations. Indeed, digging deep into the Techdirt archives, I'm reminded of the debates we used to have about the difference between invention and innovation. Invention is coming up with something new. Innovation is successfully bringing something to a market that wants it. Sometimes the processes overlap, but not always. But, as we've pointed out (in the context of debates over patents), it's usually the innovation (successfully bringing something to market in a way that people want) that's much more important in the grand scheme of things than invention (just making something new). It seems clear from looking at the approaches that Gibson and Fender each took that one focused on true innovation: figuring out a better way to solve the needs of customers. The other used the falsely promoted definition of innovation -- the one that is more synonymous with just "coming up with something completely new." (On a separate note, it's also possible that some of Gibson's problems stemmed from the ridiculous decision by the Justice Department to seize a bunch of its wood for extremely dubious reasons). It would be a useful lesson in understanding innovation to recognize that that the innovation that matters is the one that best serves customers. Not the one that is just bright and shiny and loud. Permalink | Comments | Email This Story

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Stormy Daniels lawyer Michael Avenatti yesterday dropped a bit of a bombshell on DC in the form of this document (pdf), which alleges that Trump lawyer and "fixer" Michael Cohen was engaged in far deeper, shadier financial shenanigans than had so far been reported. Numerous allegations are made in the document, including claims that Cohen may have violated banking laws in setting up and funneling money through a front company by the name of Essential Consultants, including payments made by Columbus Nova, a U.S.-based affiliate of a company controlled by a Russian millionaire, Victor Vekselberg. But buried within the document also sits allegations that numerous companies were also paying into Cohen's shell company, which had no employees and claimed to have been focused on real estate ventures. Korean Aerospace Industries, Novartis, and AT&T all managed to pay Cohen for ambiguous services, and all have been providing some comically murky explanations as to why they'd be dumping money into a shell company operated by the President's arguably-shady fixer: "Korean Aerospace Industries confirmed to The Washington Post that it paid $150,000 to Cohen’s company, but spokesman Oh Sung-keon said that it was not aware of its connection to Trump. The company said that it paid Cohen’s firm “to inform reorganization of our internal accounting system.” The company is in contention for a multibillion joint U.S. contract with Lockheed Martin for jet trainers." Yeah that doesn't sound suspect at all. The documents allege that AT&T also made four $50,000 payments to Cohen's shell LLC from October 2017 to January of this year. A statement issued to the press by AT&T attempts to claim that the company was simply seeking "insights" into the administration, which by this point had been in office for nearly a year: "Essential Consulting was one of several firms we engaged in early 2017 to provide insights into understanding the new administration. They did no legal or lobbying work for us, and the contract ended in December 2017." It's worth noting that while it was nice of AT&T to confirm the validity of many of the documents' claims, the company's rushed public statement not only got the timeframe of the payments wrong, but the name of the company wrong as well. One of the theories du jour is that AT&T was trying to secure the repeal of net neutrality, the vote for which (December 14) occurred just as the payments were wrapping up. But given that the Trump FCC had already proven itself to be a mindless rubber stamp when it comes to catering to the telecom sector's biggest companies, such additional payments likely weren't necessary to ensure the vote went AT&T's way. Granted AT&T's also been pressuring the Trump administration to "reform" NAFTA to make it easier on AT&T's telecom ambitions in Mexico. AT&T was also trying to secure the administration's blessing for its $86 billion acquisition of Time Warner. But given the Trump DOJ proceeded to sue to block that deal for anti-competitive reasons (or hey, just good old cronyism), if the payments were to grease the M&A skids you'd hope that AT&T kept the receipts. The most likely reason is that AT&T, for some idiotic reason, thought paying a shady NYC fixer's dubious front company would help curry favor with the Trump administration. That's certainly not out of character. AT&T is a company with pretty greasy track record, whether we're talking about the time it turned a blind eye to drug dealers running a directory assistance scam on its own users, the time it was caught helping scammers rip off telecom systems for the hearing impaired, or that time it was caught making bills harder to understand just to help crammers rip off AT&T customers. Unless there's some legitimate reason for these payments (which seems hard to fathom), this looks like good old American graft exposed to the light. Still, there's a lot of unsolved questions here, and while AT&T's claim that it was just looking for "insight" might work with somebody like Ajit Pai, it isn't likely to hold up under deeper federal scrutiny. Permalink | Comments | Email This Story

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N1 Bluetooth Wireless In-Ear Headphones are built around a flexible, contoured neckband, and are equipped with magnetic earpieces to help keep them securely around your neck when not in use. You can manage calls and media from two Bluetooth devices at once, and can listen for up to 8 hours on one charge. They're on sale for $39.99. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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As marijuana is slowly, but steadily, being legalized, complications have arisen. First, the federal government still considers it illegal, although it has chosen to take a mostly-hands off approach to state-level legalization. Second, law enforcement agencies are seeing a very lucrative field of drug enforcement being slowly closed off. This isn't sitting well with agencies that rely heavily on pot busts to show their effectiveness and secure funding. There's something else being adversely affected: the employment of a few hundred law enforcement "officers." Won't someone think of the poor drug dogs forced out onto the streets/put to death as marijuana legalization cruelly takes their reason for existence away? That's the breathless parade of horribles being offered by law enforcement officers in Illinois -- another state looking to legalize weed. Police agencies spend thousands of dollars and months of training to teach dogs how to sniff out and alert officers to the presence of marijuana, heroin, cocaine and other drugs. If pot use becomes legal, the dogs would likely either have to be retrained — which some handlers say is impossible or impractical — or retired. “The biggest thing for law enforcement is, you're going to have to replace all of your dogs,” said Macon County Sheriff Howard Buffett, whose private foundation paid $2.2 million in 2016 to support K-9 units in 33 counties across Illinois. “So to me, it’s a giant step forward for drug dealers, and it’s a giant step backwards for law enforcements and the residents of the community." When prohibition is rolled back, people are displaced. The 21st Amendment was a "giant step forward for distilleries" and presumably a "giant step backwards" for law enforcement, which suddenly had one less law to enforce. But it wasn't much of a loss for residents. It was only a loss for a small sector of one arm of the government, which soon found itself in full health again as the government added drug after drug to the controlled substances list. Then there's the usual complaining about the loss of fines for drug possession, which conveniently ignore the uptick in tax revenue once marijuana becomes a legally sellable substance. And there's the expected handwringing about the "gateway drug" -- something that's long been attributed to marijuana with almost zero evidence offered it leads to harder drug use. (It's really a Venn diagram being misread by those seeking to keep the substance controlled: most hard drug users have used marijuana. But not all marijuana users use hard drugs. It's the overlap that's interpreted as a gateway, when it's really nothing more than a reflection of marijuana's widespread use and easy availability.) But the parade of horribles doesn't end until overwrought prohibition advocates are publicly mourning the premature deaths of drug-sniffing dogs. Because many K-9s are trained not to be social so their work won’t be affected, Larner said a number of dogs would likely have to be euthanized. Oh my. One might be tempted to join this man in his mourning until one realizes he's really just mourning the loss of a revenue stream. The "Larner" in this quote is Chad Larner, who runs a K-9 training academy. If Larner says they can't be retrained, maybe he's correct. Or maybe he's just not interested in making money retraining drug dogs to be useful members of non-law enforcement society. Whatever the case actually is, this isn't an unbiased statement. And it's a ridiculous scenario to present: that drug legalization will be directly responsible for the deaths of police drug dogs. It's even more ridiculous because it's rebutted by actual law enforcement officials. The article quotes two law enforcement officials who say the most likely outcome is dogs will go on to live private lives with their handlers, much as they do now when they're retired. What is more likely to change is the dogs' position as instant generators of probable cause. The Pantograph article notes a drug sniff that led to the search of a vehicle is being challenged in court. Last year, the Colorado Court of Appeals ruled in favor of a man arrested in 2015 after officers searched his vehicle and found a meth pipe with white residue. The search took place after officers were alerted by a K-9, and prosecutors used the evidence to convict the man of two counts of drug possession. Like all narcotic-trained K-9s, the dog could detect marijuana, cocaine, heroin, ecstasy and methamphetamine, but could not communicate which of the substances it smelled. Because it wasn't known whether the dog alerted the officers to the presence of legal cannabis, the court ruled the evidence should not have been admitted; the man’s conviction was overturned. That's going to take a lot longer to sort out. Drug dogs can only alert. (Or respond to handler cues.) They can't speak. To keep the system free of unwarranted searches, drug dog trainers are going to need to start specializing. Dogs that won't alert to marijuana odors will be needed in states where marijuana is legal or the questions dogs can't answer are going to result in more overturned convictions. Permalink | Comments | Email This Story

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The cable company Americans love to hate is about to go supernova. Comcast acquired NBC Universal back in 2011, giving the company unprecedented control of not only the conduit into the house, but also the information and news being sent over those wires. And while regulators affixed some flimsy conditions to the deal, Comcast managed to ignore many of them, a major reason why regulators moved to block Comcast's acquisition of Time Warner Cable a few years ago. Because we're unwilling to learn much of anything from history, Comcast's now on the verge of growing significantly larger. The company recently unveiled a $30 billion plan to acquire European pay TV giant Sky. And this week, reports began to bubble up indicating that if regulators approve AT&T's $86 billion acquisition of Time Warner, Comcast plans to make its own, massive $60 billion bid for the lion's share of 21st Century Fox assets: "Comcast Chief Executive Brian Roberts only plans to proceed with the bid if a federal judge allows AT&T Inc’s planned $85 billion acquisition of Time Warner Inc to proceed, the sources said. The U.S. Department of Justice has opposed the AT&T-Time Warner deal over antitrust concerns, and a decision from U.S. District Court Judge Richard Leon is expected in June." By all accounts, AT&T is likely to defeat the DOJ in court, meaning Comcast's latest megamerger is likely to move forward. The bid is an effort to undermine a similar bid for Fox from Disney, a company Comcast has had an adversarial relationship with ever since executives rebuffed Comcast's $54 billion Disney acquisition offer back in 2004. And while this deal wouldn't include the Fox broadcast network or Fox News, it would include Fox's 30% ownership stake in Hulu (Comcast also owns 30%), it would include numerous U.S. and global operations as well as the lion's share of Fox's film properties. That said, there's still cause for worry here. Comcast's conditions affixed to its NBC Universal merger just expired, giving it newfound freedom to do things like meddle with Hulu's competitive potential. Should Comcast also nab Disney's 30% stake in Hulu, the company will have full authority to try and hamstring Hulu's ability to disrupt Comcast's own streaming or traditional video services, which is a shame given that Hulu just figured out that it should aspire to something greater than being a glorified ad for traditional cable TV. Comcast's explosive growth spurt comes as the company has not only successfully lobbied to kill net neutrality and consumer privacy protections, but is quietly securing a massive monopoly over broadband in many markets. At the same time, industry BFF Ajit Pai at the FCC is happily gutting decades-old media consolidation rules designed to protect smaller media outlets from exactly this type of rampant consolidation. For good measure, we're also watching as lobbyists dismantle both the FCC's and FTC's ability to hold Comcast accountable when it engages in anti-competitive behavior. This provides the cable giant with ample leeway to use its combined domination of both content and broadband to hamstring competitors in an absolute ocean of creative new ways. If you thought the country was having any real conversation about the possible anti-competitive implications of this perfect storm of consolidation, monopoly dysfunction, and dismantled government oversight of telecom monopolies, you'd be wrong. Permalink | Comments | Email This Story

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