posted about 1 month ago on techdirt
A lawsuit filed against President Trump alleges a host of First Amendment violations stemming from Trump's Twitter blocklist. According to the suit filed by the Knight First Amendment Institute at Columbia University, an official government account shouldn't be allowed to block users from reading tweets. Sure, there's an actual official presidential Twitter account, but nothing of interest happens there. Everything from retweets of questionable GIFs to arguable threats of nuclear war happen at Donald Trump's personal account. But everything's all mixed together because the president insists on using his personal account (and its blocklist) to communicate a majority of his thoughts and opinions. The government's lawyers are now forced to defend the president (and his blocklist) from these allegations. It's not an easy job. In fact, as Alison Frankel reports, it requires a significant amount of cognitive dissonance. First, the government has argued the Twitter account President Trump uses most is not a publicly-owned (read: government) Twitter account. The brief’s primary argument is that @realdonaldtrump is not a public forum. It’s a private platform governed by the rules of a private company, the Justice Department said. The president opened his account before he was an elected official, the brief said, and his continued operation of the account is not a right conferred by his election to the presidency. “The president does not operate his personal Twitter account by virtue of federal law, nor is blocking made possible because the President is clothed in Article II powers,” the brief said. This makes some sense, even if Trump's use of this account to announce positions on issues and potential government action undermine the "not a public forum" argument. He did have this account prior to the presidency, but perhaps he should have abandoned it for the official presidential account once he took office. Even though this argument is somewhat credible, the next argument from the government almost completely undermines it. President Trump, in other words, is not flexing his presidential power when he tweets as @realdonaldtrump, according to the Justice Department. But at the same time, Justice argued in the summary judgment brief, the president can’t be sued for posting to his private account because he’s acting as the president. He's not the president (so to speak) when he tweets from his personal account. But he is the president, so he can't be sued. No matter how many accounts he blocks. The president, according to White House counsel, is able to occupy two states simultaneously thanks to the magical powers of Twitter. It sounds ridiculous (and it is), but as Frankel points out, seemingly contradictory arguments are made all the time at this point in the pleadings. The judge is one that decides which arguments move forward -- sometimes even without calling out lawyers for arguing against their own arguments. Stripping the case of all legalese, the account Trump prefers to use should be considered an official account. And if it's an official account, Trump needs to lay off the "block" button. You can't force citizens to jump through hoops to view proclamations made in a de facto public square. Even if Trump can't be sued, he should at least lift the blocks. It's not very presidential to pointedly lock certain people out of public discussions. Permalink | Comments | Email This Story

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For the better part of a decade we've noted how if America really wanted to improve its horrible broadband problem it would stop letting industry giants like Comcast write shitty protectionist state telecom law. Over the last fifteen years, more than twenty states have passed laws preventing towns and cities from building their own broadband networks even when no incumbent broadband provider will. In many instances these bills also hamstring public/private partnerships, which are often the only way to creatively bring better broadband to under-served or unserved areas of the country. Michigan is the latest to highlight this problem. Freshman Representative Michele Hoitenga this month introduced HB 5099, a bill that would make it difficult if not impossible for local towns and cities to build their own broadband networks. The bill would ban towns and cities from using taxpayer funds to improve local telecom infrastructure. According to the Institute for Local Reliance, an organization that fights these protectionist measures and helps municipalities improve broadband coverage, the bill would also deter towns and cities from striking public/private partnerships with the likes of Google Fiber: "The exception allows local communities to engage in public-private partnerships, but the bill’s ambiguous language is likely to discourage local communities from pursuing such partnerships...Rather than put themselves at risk of running afoul of the law, prudent community leaders would probably choose to avoid pursuing any publicly owned infrastructure initiatives. ISPs defend these bills by insisting they're just really concerned about wasting tax dollars (despite historically wasting far more taxpayer money than potentially any other industry in America). Lobbyists and hired telecom policy hacks have spent fifteen years demonizing all municipal broadband projects as boondoggles. In reality, their goal is to protect regional duopolies from anything even closely resembling real broadband competition by ghost writing awful state law. They want their cake and to eat it too: they refuse to offer quality service or upgrade their networks, but they want government to prevent anybody else from doing so either. In reality, municipal broadband networks are like any other business plan. Some are good, some are bad, and all are highly dependent on the particulars of a region. But it should be up to local voters and the towns and cities themselves to make that determination -- not AT&T and Comcast lobbyists and hired policy flacks sitting half a world away. As people have grown more frustrated with shitty broadband, bipartisan opposition to these kinds of bills has only grown. After all, disdain for Comcast and its abysmal customer service is one of only a few things that can truly bridge partisan divides. Most people seem to realize we need to get creative to compensate for ISPs that feel fully deploying broadband networks (especially to rural markets and the poor) isn't worth the time and money. As a result, Hoitenga this week began facing some notable blowback on Twitter (you really should read this entire exchange while it still exists) for her proposal. Hoitenga quickly made it clear she doesn't actually understand the proposal she's supporting. For example, while her bill would take rights away from local voters by hamstringing how they can fund their own local infrastructure, she insisted she was somehow protecting voting rights: Hoitenga then proceeded to display her profound misunderstanding of the broadband market by insisting municipal broadband networks aren't really necessary, because Michigan voters somehow have access to 37 different competing broadband providers: How did the lawmaker come to this conclusion? Bing (yes, Bing!) apparently told her so. While most people usually have the choice of only one or two broadband providers that barely compete with each other, the lawmaker posted a screenshot in the bizarre belief she was contradicting this reality: Of course, if you actually visit the page that she saw in her Bing search, it tells, well, a very very different story. It's useful, first, to scroll to the bottom to look at the actual map of Holland, which shows how many providers are where. Note that most of Holland has only 2 or 3 providers. Not 37. Again, this is from the very link she claims supports her "37 providers" claim. And, of course, if you look at the details of where that "37" number came from, you'll quickly understand why it's bogus. First, it includes wireless and business-only broadband providers. That's totally unrelated to the residential market. Second, it counts different kinds of broadband from the same company (e.g. "DSL" and "fiber") as a separate provider, despite clearly being the same. Finally, and most importantly (and obviously from the map above) it ignores that the vast majority of these providers cover very, very little of the city of the city -- to the point that they're barely offering service in the city at all. Below are the residential offerings, and if you focus on that "availability" column, you'll note that most of them cover well less than 5% and a bunch are around 1%. Oh look. At most you could argue people would likely have a choice of 3 providers in their location. And one of them -- TDS DSL -- is apparently limited to 4mbps which, you know, not broadband. And, how can we not mention the "customer ratings" column. The whole point here, and the very reason why so many people are clamoring for competition from municipal broadband is because they hate their expensive, crappy, limited choices. The problem here is that these bills are usually quite literally written by incumbent ISPs, then shoveled through the legislative process via organizations like ALEC. Said ghost-written legislation then stumbles through approval with lawmakers barely understanding what they're pushing, which is something we've seen time and time again. If ISPs are so opposed to municipal broadband, there's an easy way to stop these efforts: offer a better, cheaper product and improve their historically-awful customer service. But in the United States, it's far easier to ghost write legislation, hand it off to a cash-compromised lawmaker that has no idea what it means, then sit back and enjoy the financial benefits of regulatory capture while America falls farther behind the broadband curve. This really is, as they say, why we can't have nice things. Permalink | Comments | Email This Story

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The Trump Administration is continuing its war on leakers. It's probably meant to keep whistleblowers at bay as well. This isn't necessarily a trait unique to Trump's White House. There really hasn't been a whistleblower-friendly administration in pretty much ever, but this particular administration has been awash in leaked documents, each one prompting more severe crackdowns. But it's going to come to a head at the national security level. The "Intelligence Community" -- sixteen agencies participating and partaking in intelligence analysis and collection under the Office of the Director of National Intelligence -- is basically ousting its internal oversight. Jenna McLaughlin, writing for Foreign Policy, has the details. [Dan] Meyer, whose job is to talk to intelligence community whistleblowers, can no longer talk to whistleblowers. He has been barred from communicating with whistleblowers, the main responsibility of his job as the executive director for intelligence community whistleblowing and source protection. He is currently working on an instructional pamphlet for whistleblowers, and he will have no duties to perform after he’s completed that work. He can also no longer brief the agencies or the congressional committees on his work as he’s done in the past, send out his whistleblower newsletter, or conduct outreach. And he has no deputy or staff. This is the end result of internal struggles and the continual sidelining of the so-called "proper channels." They weren't worth much when Snowden decided to leak. They were relatively worthless when others leaked documents years before Snowden began changing the intelligence community from the far outside. And if they were ever going to be worth anything, that effort has been derailed in favor of hunting down leakers. This is incredibly stupid. If the administration wants to stop leaks, one of the better tools is proper channels that actually work -- ones that get results and shield whistleblowers from retaliation. Instead, intelligence officials have decided leaking and whistleblowing are pretty much the same thing and have headed off attempts to build an official whistleblowing outfit worth a damn What's being ousted, bit by bit, is the IC's Inspector General's office. Elimination of whistleblower outlets may only be part of the plan. Once rendered toothless, it may be prevented from performing other oversight duties. But the war of leakers starts where it always starts: with whistleblowers. If the Inspector General's office is completely neutralized, the only option will be leaking, not exactly the best news for this particularly sieve-like administration. Permalink | Comments | Email This Story

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Although the Transatlantic Trade and Investment Partnership (TTIP) has dropped off the radar completely since Donald Trump's election, for some years it was a key concern of both the US and European governments, and a major theme of Techdirt's posts. One of the key issues was transparency -- or the lack of it. Eventually, the European Commission realized that its refusal to release information about the negotiations was seriously undermining its ability to sell the deal to the EU public, and it began making some changes on this front, as we discussed back in 2015. Since then, transparency has remained a theme of the European Commission's initiatives. Last month, in his annual State of the Union address, President Jean-Claude Juncker unveiled his proposals for trade policy. One of them was all about transparency: the Commission has decided to publish as of now all its recommendations for negotiating directives for trade agreements (known as negotiating mandates). When they are submitted to the European Parliament and the Council, those documents will in parallel be sent automatically to all national Parliaments and will be made available to the general public. This should allow for a wide and inclusive debate on the planned agreements from the start. An interesting article on Borderlex explores why moves to open up trade policy by the European Commission did not and probably never will satisfy activists who have been pushing for more transparency, and why in this area there is an unbridgeable gulf between them and the EU politicians. In contrast to Juncker's limited plan to publish negotiating directives in order to allow "a wide and inclusive debate on the planned agreements", this is what activists want, according to the article: timely release of textual proposals on all negotiating positions, complete lists and minutes of meetings of Commission officials with third parties, consolidated texts, negotiating mandates, and all correspondence between third parties and officials. Activists are keen to see what is happening in detail throughout the negotiations, not just some top-level view at the start, or the initial textual proposals for each chapter, but nothing afterwards. The article suggests that this is not simply a case of civil society wanting more information for its own sake, but rather reflects completely different conceptions of what transparency means. Transparency is intimately bound up with accountability, which raises the key question of: accountability to whom? These two different views reflect a seminal academic distinction between 'delegation' and 'participation' models of accountability in international politics. In a 'delegation' model, an organisation (such as the Commission) is accountable to those who have granted it a mandate (in the EU: the Council, the [European Parliament] and national parliaments). Transparency and participation should first and foremost be directed to them. Extending managed transparency to the wider public can be instrumentally used to increase trust. In a 'participation model', in contrast, organisations are accountable to those who bear the burden of the decisions that are taken. If contemporary trade policy impacts people's daily lives, the people -- directly or through civil society organisations that claim to represent them -- should be able to see what is going on, and be able to influence the process. Therefore, there is a presupposition for openness, disclosure, and close participation. The article's authors suggest that for activists, transparency is a means to an end -- gaining influence through participation -- and it is the European Commission's refusal to allow civil society any meaningful role in trade negotiations that guarantees that token releases of a few policy documents will never be enough. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Author Dan Brown is certainly not a stranger to copyright claims and lawsuits over his bestseller The Da Vinci Code. Not long after publishing the book in 2003 to wide acclaim, several legal actions took place against Brown and his publisher, as well as some action initiated by the publisher to stave off claims of copyright infringement and plagiarism. One such case that we did not cover here was brought by Jack Dunn of Massachusetts, who authored a book called The Vatican Boys, and sued Brown in Massachusetts for copyright infringement over the usual claims: there were claimed similarities in characters, plots, and factual assertions (including some that are erroneous in both). In 2007, Judge Michael Ponsor threw out the case, claiming that all the evidence Dunn's legal team provided amounted to thematic and structural similarities, which are not copyrightable. For the proceeding decade, Dunn simply went away. That is until he found another law firm willing to file another copyright suit against Brown, but this time in the UK. The suit is reportedly being prepped for filing, with Dunn's side making much of the impending legal action. Dunn has hired London-based media law firm Keystone Law. In a letter to Penguin Random House, Keystone stated they intended to issue proceedings for copyright infringement unless they received a credible explanation from Brown and his researcher wife, Blythe Brown, for what they perceive to be extraordinary similarities in both works. Keystone Law’s letter stated: “There are hundreds of similarities between “The Vatican Boys” and “The Da Vinci Code” which comprise copying portions of TVB [“The Vatican Boys”] in the form of storylines, plots, characters, historical information, scenes, themes and even factual error which have been appropriated from TVB by Mr. and/or Mrs. Brown in writing The TDC [“The Da Vinci Code].” It seems that the requested explanation from Brown or Penguin Random House will not be coming. In response, the publisher flatly rejected all of Dunn's claims and then helpfully put in written display, something like warning heads on pikes, all of the prior litigation by both Dunn and others that Brown and the publisher have fended off successfully.   There are several factors that should give Dunn and his legal team pause when it comes to actually filing this suit. Much of the reasoning by Dunn for filing this second lawsuit centers around his claim that the US ruling didn't properly evaluate the evidence he presented. That's unlikely to be the case. His reasoning for filing the suit in the UK, on the other hand, is flatly bizarre. Dunn told MarketWatch he is now finalizing legal evidence in preparation for issuing copyright proceedings against Brown. Dunn, who is from Western Massachusetts, said “The Vatican Boys” was sold around New England upon publication, and he said he suspects Dan Brown read his book while he was living in Portsmouth, New Hampshire in the late 1990s. Little of which factors at all as a basis for the UK being the proper venue for this lawsuit between two American authors. On top of that, it stretches the mind to believe that it has taken the better part of a decade for an author to come up with all of these dastardly similarities between his own work and one of the most widely read books in modern times. So too does it bend credulity to imagine that these newly discovered similarities are of the sort that are awarded copyright protection. After all, if the new evidence is more explosive than the old evidence, why wasn't it properly presented ten years ago? We'll see if this suit ever gets filed. Given Brown's track record for defeating these sorts of attempts, I know on which party I'd be putting my money. Permalink | Comments | Email This Story

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A few years ago, Russian whistleblowers like Lyudmila Savchuk began to reveal that Vladimir Putin had built a massive new internet propaganda machine. At the heart of this machine sat the "Internet Research Agency," a Russian government front company tasked with operating warehouses filled with employees paid 40,000 to 50,000 rubles ($800 to $1,000) a month to create proxied, viable fake personas -- specifically tasked with pumping the internet full of toxic disinformation 24 hours a day. Initial reports on these efforts were often playful, suggesting little more than shitposting and memes. Subsequent reports by folks like Adrian Chen at the New York Times highlighted in great detail how deep this particular rabbit hole went. Chen detailed how these efforts often went well beyond routine online trolling, and frequently extended into the real world (like the time online trolls urged American citizens to visit a Russian-operated Chelsea art gallery solely to try and distort and downplay the country's annexation of Crimea). By the summer of 2016, reports began to emerge that these same employees were also posing as Trump supporters to help stoke already raw political divisions in the States. Fast forward to this week, when Russian newspaper RBC issued a fairly massive and comprehensive report (in Russian, the Guardian has an alternative take here) showing that these efforts went even further than most initial reports indicated. From the creation of popular Texas secessionist Facebook groups to the hiring of more than 100 U.S. activists who had no idea they were working for Russia -- all tasked with stoking division inside the United States: Perhaps the most alarming element of the article was the claim that employees of the troll factory had contacted about 100 real US-based activists to help with the organisation of protests and events. RBC claimed the activists were contacted by Facebook group administrators hiding their Russian origin and were offered financial help to pay for transport or printing costs. About $80,000 was spent during a two-year period, according to the report. And while some on both sides of the political spectrum have tried to downplay Russia's propaganda and disinformation efforts as amateurish, unimportant and ineffective, the collective scope of the IRA's work revealed by whistleblowers continues to indicate otherwise: Today, business site RBC revealed the numbers that allegedly made the company work. It reports that over two years the agency spent $2.3 million on its US operations. Most of that was spent on Russian staff—around 90 employees were working on the US at the height of the trolling campaign in 2016—but it also paid for 100 US activists to travel around America, organizing 40 rallies in US cities, and spent $120,000 spreading their message on Facebook. (The Silicon Valley giant has admitted that thousands of ads were bought under Russian IP addresses during the campaign.) The 100 activists didn’t suspect any Russian involvement in the funding, RBC reports. In addition to the RBC report, Russian journalists at Dozhd interviewed a new whistleblower named "Maxim" who worked at the Internet Research Agency. According to Maxim, the organization included a "Russian desk," a "foreign desk," a "Facebook desk," and a "Department of Provocations." Whereas the Russian desk operated the country's now infamous Twitter bots and online trolls, the foreign desk was notably more sophisticated in its information assaults, trained in the more nuanced aspects of U.S. politics in order to "set Americans against their own government," and "provoke unrest and discontent." Meanwhile, the Russian government's Facebook desk was tasked with battling Facebook administrators who would try to delete fake accounts and groups -- and who would often buckle to opposition from Russian trolls who raised First Amendment concerns when challenged: "The troll farm also had its own "Facebook desk," whose function was to relentlessly push back against the platform's administrators who deleted fake accounts as they began gaining traction. When Internet Research Agency employees argued against having their accounts deleted, Max said, Facebook staffers would write back, "You are trolls." The trolls would in turn invoke the First Amendment right to free speech — occasionally, they won the arguments. By the latter half of 2016, up to a third of the Internet Research Agency was tasked with stoking existing tensions ahead of the U.S. election, according to yet another report by Russian media outlet Meduza. Another whistleblower claims that the IRA's goal wasn't always specificlly to aid Trump, but to help encourage American infighting, contributing to partisan gridlock in the States (though the IRA's disinformation work is just one prong in Russia's efforts, and the Mueller investigation may obviously have more to say on this subject in time). The RBC report notes that Chen's 2015 bombshell story in particular forced the Russian government to notably revamp its disinformation efforts, so what it looks like now is far from certain. What is certain is that Russia's online disinformation efforts -- a response to years of equally brazen efforts by the United States -- are just the latest in a multi-generational cold war that perpetually seeks to take horrible ideas to new and obnoxious levels. The biggest concern now isn't just how a country immeasurably susceptible to bullshit combats this kind of attack, but just how ham-fisted and harmful the United States' inevitable response will be. 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It's amazing what effect a little public scrutiny has on government overreach. In the wake of inauguration day protests, the DOJ started fishing for information from internet service providers. First, it wanted info on all 1.2 million visitors of a protest website hosted by DreamHost. After a few months of bad publicity and legal wrangling, the DOJ was finally forced to severely restrict its demands for site visitor data. Things went no better with the warrants served to Facebook. These demanded a long list of personal information and communications from three targeted accounts, along with the names of 6,000 Facebook users who had interacted with the protest site's Facebook page. Shortly before oral arguments were to be heard in the Washington DC court, the DOJ dropped its gag order. The last minute removal of the gag order appears to have been done to avoid the establishment of unfavorable precedent. It looks like the government perhaps has further concerns about precedential limitations on warrants served to service providers. As Kate Conger reports for Engadget, the DOJ has decided to walk away from this particular warrant challenge. In a court hearing today, the Department of Justice dropped its request for the names of an estimated 6,000 people who “liked” a Facebook page about an Inauguration Day protest, the American Civil Liberties Union said. The ACLU challenged several warrants related to protests against President Trump’s inauguration on Friday, one of which included the search, claiming they were over-broad. The ACLU notes the judge seemed sympathetic to allegations of overreach. In response, the government has apparently reduced its demands to info from two arrested protestors' accounts and further limited the date range from which data is sought. This isn't a good look for the government. Dropping demands before an order has been issued indicates the DOJ had some idea its demands were too broad. It also shows the government will make concessions, rather than risk adverse rulings. Then there's the whole issue of seeking personal information on protesters. This sort of thing creates a very real chilling effect by threatening to turn over personal information to the same entity the protesters were protesting. Fortunately, the government has walked back most of its demands in both cases. Permalink | Comments | Email This Story

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First, if you are someone who likes stepped-up ICE immigration enforcement and does not like "sanctuary cities," you might cheer the implications of this post, but it isn't otherwise directed at you. It is directed at the center of the political ven diagram of people who both feel the opposite about these immigration policies, and yet who are also championing SESTA. Because this news from Oakland raises the specter of a horrific implication for online speech championing immigrant rights if SESTA passes: the criminal prosecution of the platforms which host that discussion. Much of the discussion surrounding SESTA is based on some truly horrific tales of sex abuse, crimes that more obviously fall under what the human trafficking statutes are clearly intended to address. But with news that ICE is engaging in a very broad reading of the type of behavior the human trafficking laws might cover and prosecuting anyone that happens to help an immigrant, it's clear that the type of speech that SESTA will carve out from Section 230's protection will go far beyond the situations the bill originally contemplated. Some immigration rights activists are worried that ICE has recently re-defined the crime of human trafficking to include assistance, like housing and employment, that adults provide to juveniles who come to the United States without their parents. In many cases, the adults being investigated and charged are close relatives of the minors who are supposedly being trafficked. Is ICE simply misreading the trafficking statutes? Perhaps, but it isn't necessarily a far-fetched reading. People in the EU who've merely given rides to Syrian (and other) refugees tired from trekking on foot have been prosecuted for trafficking. Yes that's Europe, not the US, but it's an example of how well-intentioned trafficking laws can easily be over-applied to the point that they invite absurd results, including those that end up making immigrants even more vulnerable to traffickers than they would have been without the laws. So what does that have to do with SESTA? SESTA is drafted with language that presumes that sex trafficking laws are clearly and unequivocally good in their results. And what that Oakland example suggests is that this belief is a myth. Anti-immigrant forces within the government, both federal and state, can easily twist them against the very same people they were ostensibly designed to protect. And that means they are free to come after the platforms hosting any and all speech related to the assistance of immigrants, if any and all assistance can be considered trafficking. The scope of what they could target is enormous: tweets warning about plain-clothed ICE agents at courthouses, search engine results for articles indicating whether evacuation centers will be checking immigration status, online ads for DACA enrollment assistance, or even discussion about sanctuary cities and the protections they afford generally. If SESTA passes, platforms will either have to presumptively censor all such online speech, or risk prosecution by any government or state entity with different views on immigration policy. Far from being the minor carve-out of Section 230 that SESTA's supporters insist it is, it instead is an invitation to drive an awful lot of important speech from the Internet that these same supporters would want to ensure we can continue to have. Permalink | Comments | Email This Story

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In a healthy, competitive market, cable providers would respond to the growing threat of streaming video competition by lowering prices, improving their historically awful customer service, and giving consumers more flexible cable bundles. But because these same cable operators enjoy a growing monopoly over the uncompetitive broadband market -- they don't have to do that. Instead, they've found that the easiest response to added competition on the TV front is to impose a relentless array of rate hikes on captive broadband customers. There's a myriad of ways they accomplish this, ranging from misleading hidden fees that jack up the advertised price (something they're being sued for), to usage caps and overage fees (which let them not only charge more money for the same service, but hamstring streaming competitors via tricks like zero rating). But with the U.S. entering a period of rubber stamp regulators, and a lack of telco upgrades resulting in less competition than ever, Wall Street is pressuring cable operators to also jack up the standalone price of broadband services outright. New Street Research analyst Jonathan Chaplin recently predicted that a lack of broadband competition could allow cable providers like Comcast to double already expensive broadband prices over the next year. UBS analyst John Hodulik issued a research note the same week stating that cable operators should specifically jack up the price of standalone broadband service to $80 to $90 per month. Not too surprisingly, cable operators are already heeding these demands. Analysis from Morgan Stanley this week indicated that cable operators had already hiked the cost of standalone broadband 12% from last year's rates: "In a note to clients Tuesday, Morgan Stanley said that based on its own survey, cable TV companies hiked broadband prices by 12% to $66 monthly from a year earlier for customers that buy only high-speed internet and not a TV package. "As video revenue growth is increasingly pressured, leaning on data pricing is tempting to sustain earnings," said Benjamin Swinburne, a Morgan Stanley analyst in a report." Tempting, indeed. Especially when there's neither healthy market competition nor regulatory oversight there to stop companies like Comcast and Charter from doing so. Of course this is before you factor in all manner of additional costs that await consumers over the next few years, from the problems that will be caused by the mindless gutting of popular net neutrality protections, to the Trump administration's gutting of privacy rules that would have stopped ISPs from their stated goal of charging users more money if they want to protect their own privacy. And instead of creating policies aimed at improving competition in what's clearly not a healthy market, the Trump administration's FCC is engaged in the mindless gutting of consumer protections, and the manipulation of data to try and pretend the broadband market's obvious problems don't actually exist. Permalink | Comments | Email This Story

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In a healthy, competitive market, cable providers would respond to the growing threat of streaming video competition by lowering prices, improving their historically awful customer service, and giving consumers more flexible cable bundles. But because these same cable operators enjoy a growing monopoly over the uncompetitive broadband market -- they don't have to do that. Instead, they've found that the easiest response to added competition on the TV front is to impose a relentless array of rate hikes on captive broadband customers. There's a myriad of ways they accomplish this, ranging from misleading hidden fees that jack up the advertised price (something they're being sued for), to usage caps and overage fees (which let them not only charge more money for the same service, but hamstring streaming competitors via tricks like zero rating). But with the U.S. entering a period of rubber stamp regulators, and a lack of telco upgrades resulting in less competition than ever, Wall Street is pressuring cable operators to also jack up the standalone price of broadband services outright. New Street Research analyst Jonathan Chaplin recently predicted that a lack of broadband competition could allow cable providers like Comcast to double already expensive broadband prices over the next year. UBS analyst John Hodulik issued a research note the same week stating that cable operators should specifically jack up the price of standalone broadband service to $80 to $90 per month. Not too surprisingly, cable operators are already heeding these demands. Analysis from Morgan Stanley this week indicated that cable operators had already hiked the cost of standalone broadband 12% from last year's rates: "In a note to clients Tuesday, Morgan Stanley said that based on its own survey, cable TV companies hiked broadband prices by 12% to $66 monthly from a year earlier for customers that buy only high-speed internet and not a TV package. "As video revenue growth is increasingly pressured, leaning on data pricing is tempting to sustain earnings," said Benjamin Swinburne, a Morgan Stanley analyst in a report." Tempting, indeed. Especially when there's neither healthy market competition nor regulatory oversight there to stop companies like Comcast and Charter from doing so. Of course this is before you factor in all manner of additional costs that await consumers over the next few years, from the problems that will be caused by the mindless gutting of popular net neutrality protections, to the Trump administration's gutting of privacy rules that would have stopped ISPs from their stated goal of charging users more money if they want to protect their own privacy. And instead of creating policies aimed at improving competition in what's clearly not a healthy market, the Trump administration's FCC is engaged in the mindless gutting of consumer protections, and the manipulation of data to try and pretend the broadband market's obvious problems don't actually exist. Permalink | Comments | Email This Story

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Like seemingly every other government on the planet, the UK government wants internet companies like Google and Facebook to do more. Everyone has an axe to grind, whether it's not enough censorship, or the wrong kind of censorship, or the innate desire to hold companies accountable for the actions of their users. The voluntary moderation efforts made by these platforms always fall short of politicians' ideals. These legislators believe -- without evidence -- that perfectly moderated services are just a couple of button pushes away. Because the things governments complain about are actually the words and deeds of users -- rather than the companies themselves -- pushes for "more" have limited effect. This doesn't make governments happy. This is a "problem" that needs "solving," apparently. And officials in the UK think they have an answer. They'll just arbitrarily redefine services until they're more easily pushed around. Karen Bradley, the culture secretary, has said the government is considering changing the legal status of Google, Facebook and other internet companies amid growing concerns about copyright infringement and the spread of extremist material online. The internet groups are considered conduits of information rather than publishers under UK law, meaning they have limited responsibility for what appears on their sites. However, the chairman of the media regulator Ofcom said on Tuesday she believed the likes of Google and Facebook were publishers, raising the prospect that they could eventually face more regulation. Before we delve into the bullshit that is redefining tech companies for easier regulation, let's take a look at the activities the UK government is treating as equals: terrorism and copyright infringement. Tell me that's not screwed up. I understand the government can be concerned about multiple online issues simultaneously, but while it may be conceivable the use of social media platforms by terrorists necessitates closer government scrutiny, mentioning infringement in the same breath cheapens the entire argument. It immediately makes it clear the endgame isn't curbing murderous acts that kill and injure dozens of people, but regulation of any sort of internet activity the government finds bothersome. This is the slippery slope, delivered by a government official in a single sentence. Terrorism concerns make it easy to diminish freedoms and expand governmental control of communication services. Once it's set in motion, it remains in motion, moving from great evils like terrorism to comparatively minor quibbles like file sharing -- an activity that has yet to kill anyone. One is an existential threat. The other threatens nothing more than incumbents and their business models. Bradley's comment strongly suggests her ear's been bent nearly to the point of removal by entertainment lobbyists. Moving beyond that, there's the problem with redefinition. You can't call a cat a dog just because more people register dogs than cats and you want to see that revenue stream increased. You can't call third parties publishers just because it makes it easier to hold them accountable for the actions of their users. If you head down this path, you invite every special interest group with a complaint about the internet to treat service providers as publishers. In short, you're asking to rain down litigation hell on tech companies with the end result being fewer services available for internet users. If there's an upside, it's that the culture secretary views this definition shift as problematic. I am looking into this. I am not sure the publisher definition in UK law would necessarily work in the way that people would like it to work. I think it would end up being very restrictive and make the internet not work in the way we want it to work. But Bradley also wants the UK to be the "safest place to be online." It's hard to maintain a "free vibrant internet" while clamping down on everything the UK government considers to be dangerous. Website blocking by UK service providers already creates something far less free and vibrant than can be found elsewhere, and yet, it hasn't done much to make the UK much safer online, much less IRL. Bradley may be hesitant to throw a different label on social media services, but the UK government as a whole hasn't exactly been shy about creating an AOL-esque Wee Britain online -- something that chills speech and deprives UK citizens of sources of information. Permalink | Comments | Email This Story

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A few years ago, Verizon and AT&T were busted for covertly modifying wireless user data packets in order to track users around the internet. Verizon used the technology to track browsing behavior for two years before the practice was even discovered by security researchers. It took another six months of public shaming before Verizon was even willing to offer opt out tools. And while the FCC ultimately gave Verizon a $1.3 million wrist slap, it highlighted how we don't really understand the privacy implications of what mobile carriers are up to, much less have real standards in place to protect us from abuse in the modern mobile era. While notably different in scope and application, these same companies were again caught this week collecting and selling user information without user consent or working opt out tools. Earlier this week Philip Neustrom, co-founder of Shotwell Labs, discovered something interesting and documented his findings in this blog post. Neustrom discovered a pair of websites that, when visited by a mobile device over a cellular connection, appeared to easily glean numerous personal visitor details, including the visiting user's name, some billing and location data, and more. Users simply needed to input a zip code, and the carriers providing your cellular service seemingly provide a wide array of personal data to these services without user consent or an opt out. On the surface, the intention behind these services isn't particularly nefarious. These websites are examples of fraud prevention services companies like Payfone offer to companies, employers and organizations to help verify a visitor is who they say they are. Visitors to a specific website have their data immediately cross-referenced with billing, phone number, or even GPS data that's provided by wireless carriers. The problem, as Neustrom documents, is that mobile carriers don't appear to be adequately informing users this data is being collected or sold: "But what these services show us is even more alarming: US telcos appear to be selling direct, non-anonymized, real-time access to consumer telephone data to third party services — not just federal law enforcement officials — who are then selling access to that data. Given the trivial “consent” step required by these services and unlikely audit controls, it appears that these services could be used to track or de-anonymize nearly anyone with a cell phone in the United States with potentially no oversight. He also found that the existing opt out mechanisms used by T-Mobile, Verizon, AT&T and other mobile carriers don't do a damn thing to prevent this data from being monetized: "AT&T’s “consumer choice” opt-out at https://att.com/cmpchoice didn’t appear to do anything to stop this, even after waiting the stated 48 hours. All of the demos were still working for me on the morning of 2017–10–15 after I had opted out on 2017–10–13. Many users on Twitter and elsewhere also report that AT&T’s opt-out process doesn’t do anything here. Verizon’s “opt-out” pages also may not do anything to prevent this, either (A, B)." The report was seemingly a bit too obscure to get much mainstream media attention, but obviously hit a nerve all the same. Shortly after publication, both websites -- and their previously public API documentation were pulled offline by Payfone. Similarly, video of a joint AT&T Danal presentation from 2014 explaining how this technology works was pulled from YouTube. The security community was surprised to learn of the technology, with some offering more concise analysis than others: what the fuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuck https://t.co/ppLhDwH0IZ — NightmareOnTayStreet (@SwiftOnSecurity) October 15, 2017 You'll recall that for years mobile carriers like Verizon argued that we don't need meaningful privacy protections because they always self-regulate within the boundaries of good taste. Carriers re-used this justification earlier this year when they convinced the Trump administration and GOP to kill FCC broadband privacy protections. But it's hard to hold these companies accountable for privacy violations when even security researchers aren't aware it's happening, and unlike the realm of Google, Facebook or other advertisers, a lack of competition in the telecom sector means less organic competitive pressure to behave. This week's discovery is just another example of how mobile carrier self-regulation isn't working, and some modest rules requiring more transparency (and mandatory, opt out or opt in tools) would have been of immense public benefit. Permalink | Comments | Email This Story

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eSports, the once fledgling video game competition industry, has undergone several milestones in rapid succession as it grows into a true entertainment player. Once relegated to online streaming broadcasts, mostly run out of a few Asian and Pacific Island countries, eSports is now regularly broadcast on American television, including by ESPN. From there, it was a fairly natural progression for universities to take notice and begin organizing school eSports teams, as well as offering scholarships for eAthletes. But while these milestones are both important to and positive for the eSports industry, not all milestones will always be so happy. I would argue that it's a milestone of sorts that a real-world athletic apparel company, Adidas, is suing an eSports league over its logo. Turner Broadcasting has invested in a venture called ELEAGUE, which has been broadcasting eSports for the better part of two years. Turner registered several trademarks for ELEAGUE, including the following logo. Regular Techdirt readers will have already guessed why Adidas has opposed the trademark for the logo. Going back for what feels like time immemorial, Adidas has jealously protected the broad but admittedly iconic three-stripes logo it has cultivated for itself. And while even we skeptics can carve out a space for Adidas to have a valid claim on that sort of mark, it's been Adidas' aggression in going after anyone using anything even remotely similar to three-stripes regardless of shared industries, notable variations in branding, or actual customer confusion. Which doesn't keep the company lawyers from pretending otherwise in oppositions such as this one against ELEAGUE, of course. The opposition is filed on two counts—confusion and dilution. The first alleges that the similarity between the two logos, that they consist of three broken lines, and "the fact that their respective goods and services overlap or are otherwise closely related" means that the ELEAGUE logo could create the impression that events are sponsored or endorsed by Adidas. While Adidas acknowledges that it does not do business in esports—although it is the shirt sponsor of Counter-Strike team North—esports is "within the natural zone of expansion of adidas’s business and goods and services". On the second count, Adidas contends that the similarity between the brands will dilute the strength of the Adidas logo as a hallmark of authentic Adidas goods. That, Adidas say, would damage their brand. Again, I suppose it's a milestone of sorts that a big player like Adidas files a trademark opposition under the theory that real-world athletic apparel and eSports broadcasts are in related industries. Still, the claim is an obvious stretch. The actual ELEAGUE logo calls to mind the letter "E", not Adidas' stripes, and the associated branding throughout the rest of the logo act as a clear source identifier. Pained concerns about customer confusion on the part of Adidas would seem to be laughable on their face, nevermind the question as to why it took so long for Adidas to undertake this if there is so much customer confusion and dilution. Turner Sports first filed the trademark application in June 2016, but it took Adidas until Oct. 10 of this year to file the opposition. It sure seems like the kind of harm Adidas is claiming would have required hastier action than a year and half's worth of waiting. Hopefully those reviewing the opposition will take that into account and grant ELEAGUE its mark. Permalink | Comments | Email This Story

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The Supreme Court has granted the government's request for review of Second Circuit Appeals Court's decision finding Microsoft did not have to turn over communications stored overseas in response to US-issued warrants. This is a pretty quick turnaround as far as tech issues go. The Supreme Court is finally willing to take a look at the privacy expectation of third party phone records (specifically: historical cell site location info), following years of courtroom discussion... which follow years of Third Party Doctrine expansion. That being said, a resolving of sorts is needed to clarify the reach of US law enforcement going forward. The Second Circuit twice shut down the DOJ's requests to extend its reach to offshore servers. Even as the Microsoft case was still being litigated, other courts were coming to contrary decisions about data stored overseas. The target in these cases was Google. Google's data-handling processes contributed to the adverse rulings. Unlike Microsoft -- which clearly delineated foreign data storage -- data and communications handled by Google flow through its servers constantly. Nothing truly resides anywhere, a fact the DOJ pressed in its arguments and the one two judges seized on while denying Google's warrant challenges. The Supreme Court's ruling will be needed to tie these disparate decisions up into a cohesive whole. Or not. Rule 41 changes that went into effect at the beginning of this year remove a lot of jurisdictional limitations on search warrants. On top of that, the DOJ has been angling for expanded overseas powers, pushing Congress towards amending the Stored Communications Act. This, of course, is what the Second Circuit Appeals Court told the government to do: take it up with legislators. But if litigation is a slow process, legislation can be just as time-consuming. The DOJ wants permission now and the Supreme Court gives it the best chance of being allowed to grab communications stored outside of the United States using a warrant signed by a magistrate judge anywhere in the US. In the meantime, the DOJ will continue to pursue amendments to the Stored Communications Act -- a law it's already taken advantage of, thanks to it being outdated almost as soon as it was implemented. Further rewriting of the law in the DOJ's favor would allow US law enforcement to become the world's police, serving warrants in the US to gather documents stored around the globe. While this may seem like a boon to law enforcement, it should be approached with extreme caution. If this becomes law (rather than just a precedential court decision) the US government should expect plenty of reciprocal demands from other countries. This would include countries with far worse human rights records and long lists of criminal acts not recognized in the US (insulting the king, anyone?). The US won't be able to take a moral or statutory stand against demands for US-stored communications that may be wielded as weapons of censorship or persecution against citizens in foreign countries. Whoever ends up handing down the final answer -- the Supreme Court or Congress -- should keep these implications in mind. Permalink | Comments | Email This Story

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This has gone on for a while, but in the last year especially, the complaints about "bad" speech online have gotten louder and louder. While we have serious concerns with the idea so-called "hate speech" should be illegal -- in large part because any such laws are almost inevitably used against those the government wishes to silence -- that doesn't mean that we condone and support speech designed to intimidate, harass or abuse people. We recognize that some speech can, indeed, create negative outcomes, and even chill the speech of others. However, we're increasingly concerned that people think the only possible way to respond to such speech is through outright censorship (often to the point of requiring online services, like Facebook and Twitter to silence any speech that is deemed "bad"). As we've discussed before, we believe that there are alternatives. Sometimes that involves counterspeech -- including a wide spectrum of ideas from making jokes, to community shaming, to simple point-for-point factual refutation. But that's on the community side. On the platform side -- for some reason -- many people seem to think there are only two options: censorship or free for all. That's simply not true, and focusing on just those two solutions (neither of which tend to be that effective) shows a real failure of imagination, and often leads to unproductive conversations. Thankfully, some people are finally starting to think through the larger spectrum of possibilities. On the "fake news" front, we've seen more and more suggestions that the best "pro-speech" way to deal with such things is with more speech as well (though there are at least some concerns about how effective this can be). Over at Quartz, reporter Karen Hao recently put together a nice article about how some platforms are thinking about this from a design perspective... and uses Techdirt as one example, in how we've created small incentives in our comment system for better comments. The system is far from perfect, and we certainly don't suggest that every comment we receive is fantastic. But I think that we do a pretty good job of having generally good discussions in our comments that are interesting to read. Certainly a lot more interesting than other sites. The article also discusses how Medium has experimented with different design ideas to encourage more thoughtful comments as well, and quotes professor Susan Benesch (who we've mentioned many times in the past), discussing some other creative efforts to encourage better conversations online, including Parlio (which sadly was shut down after being purchased by Quora) and League of Legends -- which used some feedback loops to deal with abusive behavior: In one experiment, Lin measured the impact of giving players who engaged in toxic behavior specific feedback. Previously, if a player received a suspension for making racist, homophobic, sexist, or harassing comments, they were given an error message during login with no specifics on why the punishment had occurred. Consequently, players often got angry and engaged in worse behavior once they returned to the game. League of Legends reform card. As a response, Lin implemented “reformation cards” to tell players exactly what they had said or done to earn their suspension and included evidence of the player engaging in that behavior. This time, if a player got angry and posted complaints about their reformation card on the community forum, other members of the community would reinforce the card with comments like, “You deserve every ban you got with language like that.” The team saw a 70% increase in their success with avoiding repeat offenses from suspended users. However, the key thing, as Benesch notes, is getting past the idea that the only responses to speech a large majority of people think is "bad" is to take it down and/or punish the individual who made it: “There is often the assumption in public discourse and in government policymaking and so forth that there are only two things you can do to respond to harmful speech online,” says Benesch. “One of those is to censor the speech, and the other is to punish the person who has said or distributed it.” Instead, she says, we could be persuading people not to post the content in the first place, rank it lower in a feed, or even convince people to take it down and apologize for it themselves. Obviously, there are limits on all of these options -- and anything can and will be abused over time. But by at least thinking through a wider range of possibilities than "censor" or "leave everything exactly as is" we can hopefully get to a better overall solution for many internet discussion platforms. Meanwhile, Josh Constine, at TechCrunch recently had some good suggestions as well specifically for Twitter and Facebook for ways that they can encourage more civility, without resorting to censorship. Here's one example: Practically, Twitter needs to change how replies work, as they are the primary vector of abuse. Abusers can @ reply you and show up in your notifications, even if you don’t follow them. If you block or mute them, they can create a new throwaway account and continue the abuse. If you block all notifications from people you don’t follow, you sever your connection to considerate discussion with strangers or potential friends — what was supposed to be a core value-add of these services. A powerful way to prevent this @ reply abuse would be to prevent accounts that aren’t completely registered with a valid phone number, haven’t demonstrated enough rule-abiding behavior or have been reported for policy violations from having their replies appear in recipients’ notifications. This would at least make it harder for harassers to continue their abuse, and to create new throwaway accounts that circumvent previous blocks and bans in order to spread hatred. There may be concerns with that as well, but it's encouraging that more people are thinking about ways that design decision can make things better, rather than resorting to just out and out censorship. Permalink | Comments | Email This Story

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Readers of this site will hear the name Disney and immediately begin rolling their eyes. By virtue of its insanely aggressive and expansionist views on intellectual property matters, Disney manages to find itself on the wrong side of nearly every issue. Disney is in the business of making money and it often looks to do so in the most draconian of manners, but the company also bills itself as being dedicated to children's entertainment, growth, and happiness. Which is why it's somewhat odd to see the giant media company going to IP war against a company that sends unlicensed, poorly-disguised homage characters to children's birthday parties. Characters for Hire in New York has been hit with a lawsuit after being accused by Disney of infringing upon "highly valuable intellectual property rights" (via the Hollywood Reporter). This includes Star Wars and Frozen characters, as well as superheroes such as Iron Man. Except that those characters are altered ever so slightly and renamed in an obvious attempt to get around the exact intellectual property laws -- copyright and trademark -- over which Disney is suing. Darth Vader, for instance, is listed as Dark Lord, while Chewbacca has been rebranded as Big Hairy Guy. No, that's not a joke. On the company's homepage, it displays the following disclaimer: DISCLAIMER: ALL COSTUMED CHARACTERS ARE GENERIC/INSPIRED AND ARE NOT AFFILIATED, LICENSED OR ASSOCIATED WITH ANY CORPORATION OR TRADEMARK. It is not our intention to violate any copyright laws. The characters that we offer are NOT name brand copyrighted characters, and Characters for Hire, LLC. costumed characters are named of our own creation. Any resemblance to nationally known copyrighted characters is strictly coincidental. Should you have the need for a licensed, copyrighted mascot or character at your event, we encourage you to contact the company/copyright holders for your specific targeted character. If you have any questions regarding this issue, we encourage you to contact us. We DO NOT offer nor do we present any licensed and/or copyrighted characters. For that reason, Characters For Hire is claiming that both the copyright and trademark claims from Disney aren't valid. The characters are altered and renamed in an effort to gain protection from the idea/expression dichotomy, with those same changes and the disclaimer making it clear to the public that the company has no affiliation with the IP owners of the original characters from which these generics are inspired. That said... yeah, but no. The point made in the disclaimer that the likenesses are strictly coincidental is laughable at best. It's very likely that the copyright portion of Disney's claims will hold up in court. The trademark claims have less a chance of success, as it's abundantly clear that these are not licensed characters or associated in any way with companies like Disney. But, still, the so-called generic characters of Characters For Hire appear to be more than merely "inspired" by the originals and are instead near identical characters with alterations made only to get around copyright law. But the larger point is: hey, Disney, why? Given that the copyright claims are the most substantive, there was nothing requiring Disney to take this action. Certainly it is laughable for Disney to claim any serious harm from a copyright perspective due to Characters For Hire's actions. All this is really doing is keeping some fun, if unoriginal, characters from entertaining kids and people at birthdays and related events. Is giving up the stated aim to make children happy really worth smacking around a relatively small company that works these sorts of parties? Permalink | Comments | Email This Story

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For years, the FCC's "Form 477" data collection program has required that ISPs provide data on where they provide broadband service. Said data then helps determine the pace of broadband deployment and level of competition in key markets, informing FCC policy and broadband subsidy application. Unfortunately, this data collection process relies heavily on census block data, which doesn't always clarify which specific addresses in these large segments can actually get service. This has proven handy for ISPs looking to obfuscate their refusal to upgrade broadband networks in many areas. This inaccurate data collection is a major reason for the Kafka-esque experience many new homeonwers have when they're told their new home will have broadband service, only to discover it doesn't. Last August, the then-Tom-Wheeler-run FCC issued a notice of proposed rulemaking (pdf), seeking public input on changing the Form 477 program so it tracked individual addresses, providing a far more accurate picture of U.S. broadband deployment. At the time, the FCC admitted that it historically hasn't done a good job ensuring this data matches reality, aka the "consumer experience": The Commission to date has not systematically examined the precise underlying methodologies that are used by service providers in generating their data nor has it investigated whether actual consumer experience has diverged substantially from the Form 477 filings. Moreover, providers’ minimum advertised or expected speeds have, to date, been treated as confidential, limiting the ability of policymakers and consumers to compare offerings among service providers from this data collection. In other words, the FCC was acknowledging that our broadband maps aren't very accurate, and the FCC hasn't done a very good job holding ISPs accountable for dubious availability data or flawed methodology. Not too surprisingly, large ISPs have come out swinging against the previous FCC's attempts to improve things. In a filing with the FCC (pdf), Verizon tried to argue that more accurate data collection would be an undue burden on the company: The Commission should reject any proposals that would require fixed broadband providers to report deployment data below the census-block level. Such proposals would impose enormous costs on fixed broadband providers without providing any real benefit to the Commission or the public. Verizon fails to document the "enormity" of having to do a modestly better job telling the FCC where it provides broadband, or the fact that a painful lack of competition in the sector -- and the inability to determine how extensive the problem is -- helps pad duopolist revenues. Similarly, the NCTA -- the cable industry's biggest lobbying group -- cites ambiguous additional costs in opposing the improved mapping in its own filing (pdf): ...the Commission must ensure that the costs of any new broadband data collection requirements do not outweigh the benefits. With respect to the Form 477, the Commission should avoid collecting data that is so detailed or voluminous that it is expensive for providers to produce, difficult for the Commission to process, or unhelpful to the public. Of course it's not really the added costs that are worrying these providers. Better mapping means a more accurate picture of where these industry giants have refused to provide service or upgrade last-generation connections. That would be of considerable concern to Verizon, which has been under fire for years for taking taxpayer subsidies in exchange for fiber that never gets delivered, and for outright refusing to upgrade or repair millions of aging DSL lines it clearly no longer wants to service. Less accurate census-block data also makes it easier to obfuscate the overall lack of competition in the U.S. broadband industry. Given the current FCC's tendency to rubber stamp every whim of incumbent broadband providers, it seems more than likely that Ajit Pai and friends will scuttle this improved mapping effort proposed by the previous FCC. If you have a better understanding of the scope of a problem, you might then ponder actually doing something about it -- and we certainly wouldn't want that. Permalink | Comments | Email This Story

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The Intercept has obtained a leaked asset forfeiture guide for seizures performed by ICE. (It has, unfortunately, chosen not to share the original document. Then again, the last non-Snowden leak it published appears to have helped out the document's source.) For those familiar with the process of civil asset forfeiture, the contents of the guide are mostly unsurprising. Despite the document dating back to 2010, ICE did confirm the version seen by The Intercept is its most recent guidance. ICE is allowed to seize property without bringing charges or securing convictions -- something still permitted by federal law (your state laws may vary) and greatly encouraged by the new head of the DOJ, Jeff Sessions. What is surprising about the document is how much emphasis is placed on the seizure of real estate. As Ryan Devereaux and Spencer Woodman point out, ICE's forfeiture teams are pretty much property flippers, albeit ones working with the undeniable advantage of making zero initial investment. Much of the handbook is devoted to describing the process of seizing real estate — homes, farms, and businesses — and it is in these pages that the dual priorities of financial gain and law enforcement objectives become most apparent. While the handbook contains little discussion on how to utilize asset forfeiture to maximize crime-fighting outcomes, there is extensive discussion of how agents should painstakingly determine whether a property is valuable enough to make seizure worthwhile [...] More than a dozen pages of the document describe an important — if perhaps surprising — role of AIRG agents: as real estate appraisers. Using the example of “houses used to store narcotics or harbor illegal aliens,” the manual walks agents through a comprehensive process of assessing homes and landed properties to determine the financial appeal to ICE of acquiring such real estate. If ICE can obtain a warrant to search the property it plans to seize, it will usually send a private real estate appraiser along during the search. AIRG [Asset Identification and Removal Group] agents apparently ballpark property values using public databases -- something that tells ICE whether or not it should move forward with the forfeiture. As is the case in most civil forfeiture operations, the connecting tissue of criminal activity doesn't need to be much more than gossamer-thin. The manual instructs agents seeking to seize a property to work with confidential informants, scour tax records, and even obtain an interception warrant to determine whether “a telephone located on the property was used to plan or discuss criminal activity” in order to justify seizing the property. You would think the phone would be the "guilty" property -- at least as far as you can follow forfeiture's twisted logic. Apparently not. According to ICE's guidance, the entire house around the landline is equally culpable. The handbook also points out civil forfeiture is preferable to criminal forfeiture, thanks to its general disdain for due process. The key factor is the conviction itself -- something you'd think a law enforcement agency would value over seized property. In criminal proceedings, seized property is generally returned if the charges don't stick. Not so with civil forfeiture. ICE's guidance says when in doubt, go civil. That way the agency may still keep something, even if the alleged perp goes free. ICE is by far the biggest contributor to the DHS's total forfeiture take. This can be expected to grow with the new administration's intense focus on illegal immigration. As with any government program experiencing sudden growth, one can expect an exponential leap in abuse. Permalink | Comments | Email This Story

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Over the last few years AT&T and Verizon have been desperately trying to pivot from stodgy, protectionist old telcos -- to sexy new Millennial media juggernauts. And while this pivot attempt has been notably expensive, the net result has been somewhat underwhelming. Verizon, for example, spent billions to gobble up AOL and Yahoo, but its lack of savvy in the space has so far culminated in a privacy scandal, a major hacking scandal, a quickly shuttered website where reporters couldn't write about controversial subjects, and a fairly shitty Millennial streaming service even Verizon's own media partners have called a "dud." AT&T's efforts have been notably more expensive, but just as underwhelming. The company first decided to shell out $70 billion for a satellite TV provider (DirecTV) on the eve of the cord cutting revolution. And the company's putting the finishing touches on shelling out another $89 billion for Time Warner in a quest to gain broader media and advertising relevance. That was paired with the launch of a new streaming service, DirecTV Now, which the company hoped would help it beat back the tide of cord cutting. But things aren't really working out quite like AT&T planned. The company's stock took a beating last week after it acknowledged it would be facing a 390,000 reduction in pay TV subscribers this quarter. AT&T, in an 8K filing with the SEC, tried to partially blame hurricanes for the mass exodus occurring at the company: "The video net losses were driven by heightened competition in traditional pay TV markets and over-the-top services, hurricanes and our stricter credit standards. The decline of traditional video subscribers negatively impacts our Entertainment Group revenues and margins, resulting in an adjusted consolidated operating income margin that will be essentially flat versus the year-ago third quarter." Unmentioned is that AT&T also lost 351,000 pay TV subscribers the quarter before, as the company gets hit harder by cord cutting than most pay TV providers. One of the real reasons for these departures? While AT&T was willing to spend hundreds of billions on megamergers, it has spent the better part of the last decade (especially in places where poor people live) neglecting necessary network upgrades. As a result, in countless markets Verizon & AT&T users on last-generation DSL lines are switching to cable providers for faster broadband, and bundling cable TV service that's priced cheaper than broadband alone. In short AT&T neglected its core business in order to daydream about matching Google or Facebook's ad revenues, but (so far) lacks the core competency to jump the gap from telecom to Silicon Valley-esque Millennial marketing. Both AT&T and Verizon have spent so many years operating as government-pampered protected duopolies, they believed they could pivot on a dime, ignoring that years of regulatory capture left them with only a few key skills: charging too much for too little, lobbying to thwart competition and bullshit. To its credit, AT&T was at least willing to take a risk and launch DirecTV Now, a streaming alternative. And while the company did manage to add 300,000 streaming customers on the quarter, those users pay a fraction of what traditional cable TV customers do - and AT&T still saw a net loss of 90,000 pay TV users. Still, most other incumbent pay TV providers have responded to the cord cutting threat by raising cable TV rates (ingenious!) or by pretending to keep pace via the launch of streaming alternatives that are intentionally designed to be underwhelming, lest they cannibalize more lucrative legacy customers. One of the core problems here is that Wall Street isn't satisfied with ISPs simply doing a good job and making a reasonable profit. The relentless, myopic need for quarterly improvements has companies like AT&T and Verizon trying to use megamergers and vertical integration to magically elbow their way into markets it's unclear they lack the competency for. And only after mindlessly cheering these deals do some Wall Street analysts realize some of these arrangements don't even make coherent business sense given the current market climate: "Though the company partly blamed recent hurricanes for these trends, MoffettNathanson analyst Craig Moffett notes that weather was only the third of four reasons that AT&T listed. “Heightened competition in traditional pay TV markets and over-the-top services” came first. In other words: cord cutting. “It is becoming increasingly clear that the wheels are falling off of satellite TV,” he writes, meaning that Dish Network might announce similar results." In an ideal world, AT&T would realize its core competencies (building and maintaining wireless and fixed-line networks) should take priority. That $70 billion spent on buying a doomed satellite TV company could have gone a long way in shoring up broadband service that in many regions still doesn't even meet the FCC's base 25 Mbps definition. But in the world we live in that's simply not sexy enough for Wall Street, and the need to grow simply for growth's sake will likely result in AT&T making even more expensive deals of dubious net benefit down the line. Next up: Waffle House? Permalink | Comments | Email This Story

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Back in July, Techdirt wrote about China's plan to build a massive surveillance system based on 600 million CCTV cameras around the country. Key to the system would be facial recognition technology that would allow Chinese citizens to be identified using a pre-existing centralized image database plus billions more photos found on social networks. Lingering doubts about whether China is going ahead with such an unprecedented surveillance system may be dispelled by an article in the South China Morning Post, which provides additional details: China is building the world's most powerful facial recognition system with the power to identify any one of its 1.3 billion citizens within three seconds. The goal is for the system to able to match someone's face to their ID photo with about 90 per cent accuracy. The project, launched by the Ministry of Public Security in 2015, is under development in conjunction with a security company based in Shanghai. The article says that the system will use cloud computing facilities to process images from the millions of CCTV cameras located across the country. The company involved is Isvision, which has been using facial recognition with CCTV cameras since 2003. The earliest deployments were in the highly-sensitive Tiananmen Square area. Other hotspots where its technology has been installed are Tibet and Xinjiang, where surveillance has been at a high level for many years. However, the report also cautions that the project is encountering "many difficulties" due to the technical limits of facial recognition and the sheer size of the database involved. A Chinese researcher is quoted as saying that some totally unrelated people in China have faces so alike that even their parents cannot tell them apart. Another issue is managing the biometric data, which is around 13 terabytes for the facial information, and 90 terabytes for the full dataset, which includes additional personal details on everyone in China. As the South China Morning Post article rightly notes, it won't be long before 13 terabytes will fit on a single portable USB hard drive, which raises the issue of facial recognition data being copied and used for other unauthorized purposes: But a network security vendor for the Ministry of Public Security dismissed the possibility. "To download the whole data set is as difficult as launching a missile with a nuclear warhead. It requires several high-ranking officials to insert and turn their keys at the same time," the vendor said. Given all that we know about the lamentable state of computer security around the world, even for highly-sensitive data, that claim seems a little hyperbolic. Since the Chinese government is apparently determined to build and operate this huge facial recognition system despite all the challenges, the unnamed network security vendor quoted above may find out the hard way that exfiltrating some or even all of that data really isn't rocket science. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
As much more attention has been brought to copyright trolls and the unethical manner in which they operate, it was inevitable that the tactics of the trolls would begin to shift. For some of us, it was immediately obvious what a PR problem these trolling operations faced. It all comes down to the "settlements" offered in a copyright troll's letters. The amounts, while designed to look small compared with the threat of a lawsuit, still tend to be quite high. Certainly the amounts make no sense when compared with the costs of simply viewing a movie or television show, which is the natural standard that lay person is likely to set. For that reason, some trolls, such as RightsCorp, have already started down the path of lowering settlement offers to levels that are more likely to cause the accused to simply pay up. Also, the fact that these letters, with all of their threatening language, even refer to the offers as "settlements" rings much closer to extra-judicial extortion than anything resembling justice. Well, it seems that one copyright troll is attempting to correct against both of these concerns. Rights Enforcement, contracted by the studio behind the movie The Hitman's Bodyguard, is sending out letters to those it claims pirated the film with a much-reduced amount of money requested. And these requests are being called "fines" as opposed to "settlements." Rights Enforcement sends automated ‘fines’ via DMCA notices, which is cheaper than expensive lawsuits. At the same time, this also makes the settlement process easier to scale, as they can send out tens of thousands of ‘fines’ at once with limited resources, without any oversight from a court. TorrentFreak has seen several notices targeted at The Hitman’s Bodyguard pirates. While the notices themselves don’t list the settlement fee, recipients are referred to a page that does. Those who admit guilt are asked to pay a $300 settlement fee. Beyond those changes, the letters are classic copyright trolling dreck. The letters are sent out on the basis of an IP address being associated with the torrenting of the film, with threats of a lawsuit still in the text. It then sends the recipient to a site where the accused offender can pay the fine -- although on that site, it refers to the "fine" as a "settlement" -- and also includes a link to where the accused can find legal representation. Legal representation that will, of course, easily cost more than the $300 fine. The notice also kindly mentions that the recipients can contact an attorney for legal advice. However, after an hour or two a legal bill will have exceeded the proposed settlement amount, so for many this isn’t really an option. It’s quite a clever scheme. Although most people probably won’t be sued for ignoring a notice, there’s always the possibility that they will. Especially since Rights Enforcement is linked to some of the most prolific copyright trolls. It's not so much a reworking of the copyright troll's business model as much as it is one troll attempting to refine its process and fee structure to maximize its conversion rate. While that sounds like any business, it's worth noting that these letters are ostensibly about a harmed party looking for justice. The threats of lawsuits are, if not entirely empty, certainly not the desired outcome for the trolling operation. Any such lawsuit would cost the rights holder far more than it wants to spend. It's still extra-judicial extortion of a kind, in other words. It's just a cheaper form of it, with a little clever wording thrown in to boot. Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
A little over a month ago, body cam footage of a police officer trying to bully a nurse into breaking the law went viral. Salt Lake City police detective Jeff Payne wrapped up his failed intimidation attempt by arresting nurse Alex Wubbels for following her hospital's policy on blood draws. If there are no exigent circumstances and the person not suspected of criminal activity, police need a warrant to draw blood. None of those factors were present when Detective Payne demanded the hospital draw blood from an accident victim. The victim was, in fact, a reserve police officer from an Idaho law enforcement agency, who had been hit head-on by a fleeing suspect. This officer later died from his injuries. He was in a coma when Detective Payne began demanding the hospital hand over some blood, obviously in no condition to consent to the search. The entire bodycam video of the incident can be seen below. Payne argued, after being fired for violating department blood draw policies (and for violating a Supreme Court decision, but Payne isn't expected to know the laws directly affecting his position on the PD's blood draw team), he arrested Wubbels because he "didn't want to create a scene" in the emergency room. If he hadn't arrested her, or demanded she violate both the law and hospital policy, there would have been no scene to be concerned about. Instead, Payne thought he could intimidate his way through this. Now he's out of a job and attempting to sue his way back in. (Side note: Payne also lost his moonlighting gig as a paramedic as the body cam footage also caught him saying he would start routing "good patients" to another hospital and bring Wubbels' ER "transients.") His lawyer is making a hell of an argument: Payne was unfairly fired because the public saw him violating department policies. Attorney Greg Skordas, who represents Payne, said his client plans to appeal a firing he considers unfair and over the top. Skordas said Payne would still be employed if the body camera footage hadn't generated so much attention and blown the events out of proportion. There are (at least) two ridiculous implications contained in this statement. First is the implication that the only "proper "investigation is one that clears the officer of wrongdoing and/or results in the most minimal of discipline. The second follows the first: Skordas is basically affirming law enforcement agencies rarely hand out proportionate discipline unless forced to by public outcry. Neither are good looks for Skordas, his client, or his former employer. The internal investigation reached the same conclusions anyone would have after viewing the body camera footage: both Payne and his supervisor, Lt. James Tracy, acted in bad faith during the incident, using both intimidation and a profound -- perhaps even deliberate -- misconstruing of applicable laws in hopes of taking blood from an accident victim (and fellow police officer). Beneath Skordas' argument is another ugly assertion: his client feels he's being unfairly treated because a police camera captured him behaving exactly the way he behaved when he arrested a nurse for following hospital policy and a Supreme Court decision. Detective Payne deprived someone of their liberty -- albeit briefly -- for daring to stand up for the rights of her patient. That's about as ugly as it gets. Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
This episode was supposed to come two weeks ago when the news was a little fresher, so by now you almost certainly know all about the copyright claims on Donald Trump's appearances on the Howard Stern show. Though delayed by an outage at our cloud recording provider, the episode is still an interesting listen, with frequent Techdirt contributor Cathy Gellis joining the podcast to discuss the deeper question of whether copyright truly even exists on the interviews in the first place. Sorry for the delay, and we hope you enjoy it! Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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