Becoming "more open" by looking at things from this particular angle didn't go down at all well in China, where the authorities regard Tibetan veneration of the Dalai Lama as a threat to political stability in the region. According to the New York Times, the post provoked an "outcry" from Chinese internet users, many of whom pledged to boycott the Mercedes brand. It's hard to gauge to what extent Chinese citizens did this spontaneously, or whether some of those protesting online were part of the authorities' well-oiled Internet surveillance and propaganda machine. In any case, what mattered was that the Chinese government was not happy at all, and Mercedes-Benz realized that if it wanted to carry on selling its cars in China, it had better start apologizing quickly and deeply. This it did by posting to its official Weibo account, translated here by the Shanghaiist:

This morning, we noticed that our company's international social media had posted an extremely erroneous message. For this, we sincerely apologize.

Although we deleted the post as soon as possible, we fully understand how it has hurt the feelings of people in this country, including our colleagues who work in the country. For this, we express our sincerest apologies.

The Chinese government evidently wanted to make the most of this new opportunity to humiliate a Western company. The People’s Daily, the ruling Communist Party's official newspaper, went so far as to berate Mercedes-Benz thus in a headline (original in Chinese):

If you do like this, you are an enemy of the Chinese people!

What makes the situation even more absurd is that Instagram is blocked in China, and so in theory nobody in the country could even see the ad. As with the Marriott International story, it underlines that the Chinese government now believes it has a right to dictate what should happen outside its borders, as well as within them.

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You would think that with the DOJ pointing out these fairly fatal flaws with the bill, that perhaps (just perhaps), the House would delay voting on this. As noted last week, bringing the amendment to the floor without having it go through the House Judiciary Committee (as is supposed to happen), seemed to be the House's way of washing its hands of the bill, and tossing the issue back to the Senate. But rushing through a bill with huge implications is no way to make law. As Rep. Lofgren noted on the floor:

The justice department says in this letter that they believe any revision to define “participation in a venture” is unnecessary and in fact that the new language would impact prosecutions by effectively creating additional elements in fact they say the amendment will make it harder to prosecute…There’s a thing we get told in law school: Bad cases make bad law. One of the ways to avoid that is to have the committee process work through it. That didn’t happen....

And thus, Walters' amendment prevailed 308 to 107 and then the combined (terrible) bill sailed through the whole House 388 to 25. Kudos the to the 25 Representatives who actually understand how CDA 230 works and why this bill is so bad, but it's depressing to think that it was just 25.

In response to this, Senator Ron Wyden has already put out a statement scolding the House for failing to understand what they've just done:

History shows that politicians have been remarkably bad at solving technological problems. I have written laws in the past, including Section 230 of the Communications Decency Act and the Internet Tax Freedom Act, that have kept politicians and special interests from sinking the internet.This bill will only prop up the entrenched players who are rapidly losing the public’s trust. The failure to understand the technological side effects of this bill – specifically that it will become harder to expose sex-traffickers, while hamstringing innovation – will be something that this congress will regret.

I take a backseat to no one when it comes to fighting sex trafficking and locking up the monsters who prey on the defenseless. I have authored laws to support victims and provide ongoing funding paid for by those convicted of heinous crimes against children, and authored laws to improve the child welfare system to help prevent children from becoming victims in the first place. However, the bill passed today by the House will make it harder to catch bad actors and protect victims by driving this vile crime to shadowy corners of society that are harder for law enforcement to reach.

This is the perfect encapsulation of a broken Congress. They "did something" for the grandstanding feature alone. Lots of Congressional Representatives will now claim that they "voted to stop sex trafficking" or some such, without bothering to understand or care why this bill actually will harm the victims of sex trafficking, making it more difficult for law enforcement to go after actual traffickers, creating serious incentives for websites not to stop sex traffickers from using their platforms and not to help law enforcement, and (as a side effect) seriously undermining free speech on the internet.

The bill now moves back to the Senate, which has already passed its version of SESTA out of Committee where Wyden put a hold on it. It appears likely that a vote will happen sometime soon on the bill, so now might be a good time to call your Senator and let them know that as good as this bill may sound from its title, its actual impact will be a total disaster.

When a tech company is huge and dominant, it can feel like competing with them is impossible. Worse still, it can sometimes feel like innovating is impossible, since they might just step in and take over as soon as someone executes on a good idea. Once upon a time this was how startups felt about Microsoft, while today it's more likely to be Google or Facebook. But no company, no matter how mighty, is immune to being disrupted — and figuring out how is the subject of this week's episode.

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I mention this because as people call for Amazon, Apple, Roku, and YouTube to drop NRA-TV, I realize that we've seen calls for censorship like this before. What's happening today:

Amazon, Apple, Roku and YouTube are facing increased calls to drop the National Rifle Association’s TV channel from their streaming services, as backlash against the organization grows following a Florida school shooting last week that killed 17 people.
…
On Thursday, Brad Chase ― a friend of Daniel Reed, the father of a Marjory Stoneman Douglas High School student who survived the shooting ― started a Change.org petition urging Amazon to drop the channel.
…
“The NRA has long ignored its role in promoting gun violence and betrayed the names of good and responsible gun owners,” Chase wrote on the petition’s page. “It’s time to hold them, and their partners, accountable ... a company like Amazon should not be spreading their message.”

But compare these calls for television networks to drop pro-NRA views with the calls NRA supporters used to make to television networks to pressure them to drop anti-NRA views instead.

In the case of Laugh-In, a precursor to shows like Saturday Night Live and often lauded for its humorous handling of topics of public interest, it appears that gun control was one topic that was off-limits to it. From a letter Dan Rowan wrote in October 1973, lamenting his show's inability to do a send-up of America's gun control laws because the TV network was too afraid of the NRA to allow Laugh-in take it on:

...[T]here are so many things we can't talk about because [the network is] running so damn scared. We have been trying to get a gun control piece on since the beginning of the season, and they are so afraid of the NRA lobby we haven't been able to. Now I don't know one solid argument against the control of hand guns and we will keep trying but that's just one example of the problem.

(From the book, "A Friendship: The Letters of Dan Rowan and John D. McDonald, 1967-1974.")

Granted, this comment came up in the context of Rowan's broader frustration with a much more general culture of fear at the network, which appears to have been predicated on licensing concerns due to the saber-rattling of eventually-deposed Vice President Spiro Agnew. But the essential point remains that pressure by people with one set of views was preventing the airing of any contrary views. And so the future inherited ignorance on the subject, because that's what censorship gives it.

Television is not what it was in the 1970s, when the major networks served as gatekeepers. Now Amazon, Apple, and Roku et al play the role of the gatekeepers. And the consequences of asking them to close their gates to certain ideas will be the same now as they were then: the loss of important discourse, discourse we need in order to achieve meaningful and lasting change.

There are of course a few points to note here. One is that asking television networks to censor is different than asking other businesses to cut ties to organizations whose views may be odious. Withdrawing sponsorships, for instance, takes away the oxygen an entity needs to survive as a viable enterprise. True, cutting off an avenue for expression may certainly make spreading its ideas more difficult, and perhaps cut down on its income, but it can at most damage the organization. It doesn't get rid of its ideas. Its ideas will persist.

Furthermore these are calls for private censorship, not public censorship, the latter of which the First Amendment applies to. The First Amendment also protects calls for private censorship, but it doesn't make them a good idea. And calls for private censorship have a habit of leaking into public policy. Laugh-In was produced in an age where its network's FCC license was threatened. Apple, YouTube, Roku et al exist in an age where reactive legislatures keep finding themselves tempted to slap the hands of technology companies, whether it's a good idea to or not. It's not a healthy reflex to look to banning an idea as a way to deal with an undesirable one, and it would not be good to become so inured to responding this way in a private context that we tempt in in the public one. The First Amendment doesn't automatically stop every censoring policy, and a lot of damage to discourse can occur before the First Amendment can put an end to an unconstitutional regulatory response.

But the reason it's not a healthy response is because banning ideas is not an effective way to deal with them. The only way to defeat bad ideas is in the marketplace of ideas, where through open conversation a better consensus can evolve. There are no shortcuts; better ideas can't win the day by trying to suppress contrary ones. Pushing for censorship that favors certain ideas only creates a vacuum where those ideas can become artificially distorted and more extreme, with no countervailing views available to temper them. And it risks having those very same preferred ideas later shut out, because restricting public discourse to only some ideas is not the same thing as convincing anyone of their merit.

What is happening to the NRA now is testament to this reality: suppressing gun control discussion didn't give the NRA a world where those contrary ideas no longer existed. Instead it gave itself a world where its own views arguably became more extreme and now stand to be repudiated – or even themselves potentially suppressed.

But such anti-NRA suppression would be unfortunate, for the exact same reason that it was wrong, and ultimately ineffective, when the NRA did it. Censorship only inhibits progress. Meaningful and lasting change only happens when minds are changed, and that can only happen when people can talk freely about the issues affecting them. Perhaps the NRA thought its views had prevailed when it was able to control the public discussion about guns, but the backlash today shows that it was a fleeting and feeble victory. Those who wish to push an alternative policy agenda now should heed that lesson, to make sure that any gains they hope to make are not equally feeble and fleeting.

That FAQ is basically a rant basically screaming "I was right and was right to sue and the people criticizing the lawsuit are wrong."

In our original post, we pointed out that Jacobson (based in California) was suing Clack (based in Colorado) in Washington DC. While that is where the National Academy of Sciences is based, we noted that this venue was almost certainly chosen because of a very troubling ruling in the CEI v. Mann case it made in early 2017 in another case involving a scientist suing a critic. As we noted, this was making DC a "good venue" for scientists seeking to sue over academic disputes. Indeed, Jacobson more or less admits this in his FAQ. Responding to the "question" of why the people he's suing aren't protected in their opinions under the First Amendment, Jacobson writes:

This case falls under Washington D.C. law, and a relevant similar case to this under D.C. law is Competitive Enterprise Institute versus Mann 150 A.3d 1213 (2016). The following excerpts from this case illustrate that false facts that defame individuals are not sheltered under the First Amendment...

That's a somewhat tortured reading of an already bad decision. The Supreme Court has already made it quite clear in multiple cases -- including US v. Alvarez -- that false statements can certainly be protected under the First Amendment.

Even when considering some instances of defamation and fraud, moreover, the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood.

After going on for pages and pages about why he was totally right to file this lawsuit, he says he dismissed it because it would take a long time for the case to play out (why he didn't realize this in November when he sued is not explained):

It became clear, just like in the Mann case, which has been going on for 6 years, that it is possible there could be no end to this case for years, and both the time and cost would be enormous. Even if the motions for dismissal were defeated, the other side would appeal, and that alone would take 6-12 months if not more. Even if I won the appeal, that would be only the beginning. It would mean time-consuming discovery and depositions, followed by a trial. The result of the trial would likely be appealed, etc., etc.

His second reason? He claims that filing the lawsuit has succeeded in making people aware that he thinks the article he's suing over is incorrect, even if it didn't lead to the correction he demanded:

Second, a main purpose of the lawsuit has been to correct defamation by correcting the scientific record through removing false facts that damaged my coauthors and my reputations. While I have not succeeded in having the scientific record in the C17 article corrected, I have brought the false claims to light so that at least some people reading C17 will be aware of the factually inaccurate statements.

As such, after weighing the pros and cons, I find that I have no more reason to fight this battle. I believe it is better use of my time continuing to help solving pressing climate and air pollution problems.

Yes. It has called attention to the fact that you disagree with claims in the other article. It has also called much more attention to the fact that you sued someone over an academic dispute. And, while Jacobson doesn't seem to think this is true, it seems like that alone may have a much bigger negative impact on his reputation than the article he's so upset about.

Meanwhile, Jacobson has continue to use Twitter to insist that it is "misinformed" to claim that this dispute should have remained in academic settings rather than court and to argue with lots and lots of people telling him that this whole lawsuit was a bad idea (or asking if he'll pay the legal costs of those he sued):

Once again, we need a federal anti-SLAPP law. Jacobson should agree, if he was legitimately concerned with how long all of this would take. A federal anti-SLAPP suit would have ended this case pretty quickly as well (though it might have forced Jacobson to pay the legal bills of those he sued).

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Social media giants Facebook Inc. and Twitter Inc. should be fined if they don't weed out automated accounts, or bots, trying to influence U.S. public opinion, said Democratic Senator Amy Klobuchar.

“I think that would be a great idea,” Klobuchar, of Minnesota, said on NBC’s “Meet the Press” on Sunday when asked whether the companies should face fines if they fail to act after the government discovers the bots.

First, let's stop giving politicians bad ideas. Whoever prompted this response from Klobuchar has bits on their hands if this ever becomes law. Klobuchar can come up with her own bad ideas. There's absolutely no reason journalists should be floating ideas containing First Amendment collateral damage. Let Klobuchar come up with her own terrible legislation. It's not like she hasn't done it before.

Second, what the hell does this even mean? Weeding out all bots is impossible. Weeding out those the government has noticed might be doable, but they'll likely be replaced with new ones as soon as they're deleted. On top of that, forcing large platforms to cull anything that resembles automation is going to do damage to legitimate accounts that schedule posts in advance and it might result in the removal of truly useful bots, like Brad Heath's Big Cases bot -- one that trawls federal court RSS feeds for cases of interest and posts publicly-available copies of filings locked behind the government's PACER paywall.

Such a task is unfeasible. Legislation like this would only serve as a platform for political grandstanding. Fining tech companies for violations of terms of service by users is ridiculous. It's not as though we don't have enough ongoing threats to service provider immunity. Twitter and Facebook are already trying to wrestle with bot problems, but criminalizing the mere existence of bots doesn't solve the problem. It just makes it easier for the government to monetize the very behavior reps are claiming they want to stamp out. It's an incentive with a government perversion attached.

And Klobuchar, of course, has no idea how platforms with hundreds of millions of users will implement the No Bots Allowed law. All she knows is it's their problem and they're smart enough to figure it out on their own.

“These are the most sophisticated companies in America,” Klobuchar said. “They have brilliant people working there. I believe that they’ve got to put more resources -- maybe it means they make less profits off of ads and other things -- but they’ve got to put the resources into Facebook and Twitter to stop these bots from dominating the accounts.”

Of course! The nerds will do it! They'll take all of the blame and receive none of the credit while the federal government gets into the business of running social media platforms. If a company doesn't have the money to do it (smaller startups), then they just don't get to play. And if platforms struggle financially attempting to please the government while shedding users, so be it. If destroying American companies (and damaging the internet) is what it takes to take down the Russian bot menace, no price (paid by others) is too high.

Finally, there's a good chance the implementation of a law like this would push social media platforms to demand even more personal information from users, eliminating truly anonymous speech and possibly endangering lives/livelihoods of pseudonymous users. Fortunately, these seem to be off-the-cuff response based on a bad set of improv prompts from Meet the Press hosts. But Klobuchar has pushed bad legislation in the past and there's no time like the present to pretend the US government can somehow legislate away foreign influence in US politics.

"Pai "fought to preserve your free speech rights" as a member of the FCC's Republican minority during the Obama administration, Schneider said. Pai "fought and won against all odds, but the Obama administration had some curveballs and they implemented these regulations to take over the Internet." "As soon as President Trump came into office, President Trump asked Ajit Pai to liberate the Internet and give it back to you," Schneider added. "Ajit Pai is the most courageous, heroic person that I know."

Of course if you've been paying even a shred of attention, you should realize there's nothing courageous about ignoring the public, ignoring the experts, ignoring all objective data just to give a sloppy wet kiss to despised telecom monopolies like Comcast. Pai's repeal is widely derided as one of the worst tech policy decisions in the modern internet era, making the backlash against legislative shitshows like SOPA look like a cozy beach side picnic in comparison. And despite every effort by the telecom industry to frame net neutrality as a partisan issue, that is, and continues to be, bullshit.

While a petty and blatant attention-seeking move, the stunt may have given both the NRA and Pai a little more than they bargained for. As part of the award Pai was given an antique musket, a move former Office of Government Ethics boss Walter Shaub was quick to criticize as a violation of FCC ethics rules:

It's possible Pai can tap dance around this by claiming the musket (which the NRA said would be stored and displayed at their offices in Virginia) never formally entered Pai's legal ownership. Of course that doesn't make this effort any less idiotic and tone deaf. CPAC apparently doesn't realize that Millennials are starting to vote in greater numbers than ever before, and while CPAC leadership may have thought combining the NRA (while in the middle of a massive PR kerfuffle) with the attack on net neutrality was an "epic troll," all younger voters are going to see here is a giant neon sign blinking the words "incompetence" and "corruption" in endless repetition.

Pai wasn't alone in potentially violating ethics rules during CPAC. Under the Hatch Act, FCC Commissioners can't openly pitch for a specific political candidate, a rule Pai's fellow Commissioner Mike O'Rielly violated when he urged CPAC attendees to vote for Trump:

"O’Rielly, however, later found himself embroiled in his own controversy. His trouble started with a question about what the FCC could do to stop the constant “ping-pong” of issues, such as net neutrality, every time the party in power changes in the nation’s capital.

“I think what we can do is make sure as conservatives that we elect good people to both the House, Senate and make sure that President Trump gets reelected,” O’Rielly began.

The GOP commissioner’s plug for the president riled some ethics watchdogs. Under a set of rules known as the Hatch Act, government officials such as O’Rielly generally aren’t supposed to use their stations to advocate for election outcomes.

Remember, these are the same FCC staffers that had an epic hissy fit a few years back when they claimed the former White House "improperly" violated nonexistent ethics rules by openly advocating for tough net neutrality rules. They're now embroiled in numerous GAO inquiries, face a growing mountain of lawsuits, and now face an FCC Inspector General Inquiry for potentially being too cozy with the industries they're supposed to be holding accountable on behalf of the American Public. Keep digging that hole, gentlemen.

When Apple Inc begins hosting Chinese users’ iCloud accounts in a new Chinese data center at the end of this month to comply with new laws there, Chinese authorities will have far easier access to text messages, email and other data stored in the cloud.

That’s because of a change to how the company handles the cryptographic keys needed to unlock an iCloud account. Until now, such keys have always been stored in the United States, meaning that any government or law enforcement authority seeking access to a Chinese iCloud account needed to go through the U.S. legal system.

Now, according to Apple, for the first time the company will store the keys for Chinese iCloud accounts in China itself. That means Chinese authorities will no longer have to use the U.S. courts to seek information on iCloud users and can instead use their own legal system to ask Apple to hand over iCloud data for Chinese users, legal experts said.

This will allow the Chinese government to quell dissent and hunt down wrong-thinkers much more efficiently. It also shows the company is willing to drastically change the way it does business in order to maintain a large foreign customer base. This move will prompt questions from Congressional reps and FBI officials about Apple's refusal to work with the US government to provide access to locked devices and encrypted communications. Thanks to its acquiescence to the Chinese government, these questions won't be so easy to answer.

This change in policy won't budge the needle much in terms of US lawful access. US authorities will now have to route requests for Chinese data through the Chinese government, but it's unlikely there's much of that going on now. Requests for domestic data and communications stored in Apple's iCloud will be handled the way they always have been. Apple's always held keys domestically for iCloud accounts, which makes the cries of "going dark" a bit melodramatic.

But it does indicate Apple is willing to change policies for governments far less freedom-friendly than ours. And if it's willing to do that, why won't it stash encryption keys for locked devices where US law enforcement can access them?

Apple's defense of this move is interesting. It claims denying the Chinese government access would have meant shutting down the service in China. According to Apple's statements, this would make Chinese users less safe than the company decrypting iCloud data on demand.

“While we advocated against iCloud being subject to these laws, we were ultimately unsuccessful,” it said. Apple said it decided it was better to offer iCloud under the new system because discontinuing it would lead to a bad user experience and actually lead to less data privacy and security for its Chinese customers.

Presumably, data would have migrated to smaller cloud services offering even less protection to Chinese citizens. But that's hard to square with the fact that Apple's Chinese iCloud infrastructure is reliant on state-owned cloud firm Guizhou -- a company with close ties to the Chinese government.

Apple says the government won't have access to keys. It will still hold the keys, but the data's location means there won't be any prolonged battles over jurisdiction. Its "contractual arrangement" with Guizhou possibly makes Apple's decision to hold the keys inconsequential. The government may be able to approach Apple's partner and obtain direct access, bypassing the very minimal legal requirements Chinese law enforcement needs to meet before demanding user data.

Apple used to resist the Chinese government's demand for cloud data. Now it's pretty much engaged in a partnership with a state-owned business. If it's willing to do this, its resistance to US government overtures seems hypocritical at best. I don't want Apple to lower its defenses against US government intrusion, but I'd rather it took a consistent stance on these issues. Right now, it appears to be willing to submit to authoritarian governments rather than sacrifice part of its user base. It punches holes in its defenses of its actions on the domestic side and makes it easier for US law enforcement officials to sell encryption-damaging legislation to Congress and the White House.

This is the state of Kansas' current laws regarding body camera footage. Very few people are given access to footage and, with rare exceptions, the footage remains completely in the hands of law enforcement. The only people granted access to footage at this point in time are subjects of recordings, parents of minors who are subjects of recordings, attorneys for a recording subject, or a person's heir.

These bills aim to change that. The Senate bill [PDF] would require law enforcement agencies to produce footage for these recipients within 24 hours of a request. It would also add to the list of viewers, albeit with an additional delay. Anyone requesting video footage would have access to it within 30 days if the recording contains use of force resulting in injury or death. Agencies would still be able to redact footage in certain instances (mainly to remove the name/face of an officer currently under investigation) but would have to remove redactions once this investigation concludes. And slow-rolling an investigation won't help police keep footage at least partially buried: the law says all redactions must be removed within 270 days.

The House bill [PDF] speeds up that timetable. Both require a 24-hour turnaround for subjects of body cam footage, but the House bill would force law enforcement agencies to turn over video to anyone requesting it within five days of the use of force incident.

Needless to say, law enforcement agencies aren't happy with the proposed laws. Critics from affected departments spoke up against the bill by insinuating citizens were too stupid to handle unredacted footage of use of force incidents.

Body cameras don’t have the same perspective as the officers, said Greg Smith, a special deputy/sheriff’s liaison with the Johnson County Sheriff’s Office.

“If you’re looking for this to be some kind of panacea to fix police and community relations, this is not the bill,” he said.

Olathe Police Chief Steven Menke said a body camera is a tool but “rarely tells the entire story.”

“We cannot lose sight of the fact that police officers have the same due process rights as every other citizen,” he said.

Shorter law enforcement: trust cops, not your lying eyes. Yes, body cameras "rarely tell the entire story," but that objection is never raised when footage clears officers of wrongdoing or shows subjects apparently engaged in criminal acts. And cameras are not a panacea. But burying footage behind legislated barriers is about as far removed from a "panacea" as law enforcement can get.

It's true a 24-hour turnaround time is extremely tight, especially if the responding agency doesn't have much practice handling camera footage and/or applying redactions. That being said, too long of a grace period for redaction just invites stonewalling, even when footage is edited and ready to go. Without hard limits on production, everyone's still going to be subjected to interminable waits to access body cam footage.

The complaint by the local police union is even more nonsensical.

"If this bill becomes law, law enforcement agencies would be forced to disclose the video long before their criminal and/or administrative reviews are completed," said Blaine Dryden, president of the Kansas State Lodge of the Fraternal Order of Police. "Unquestionably, the disclosure with this much haste is not accompanied by any substantial factual context that a complete investigation provides."

Law enforcement agencies are Johnny-on-the-spot when it comes to delivering rap sheets, surveillance footage, questionable social media posts, or whatever else puts victims of excessive force in a bad light. But they're oh so reluctant to turn over footage showing officers engaged in questionable behavior. Somehow we're expected to wait for everything to get sorted out over the next several months-to-years before we're allowed to take a look at footage officers captured in public while performing their public duties.

The clock is ticking on these bills and legislators pushing for the new laws claim they're being met with law enforcement stonewalling.

Sen. Molly Baumgardner, R-Louisburg, a supporter of the bill, said the issue of providing access to police recordings has been around the Legislature for at least three years, and she said opponents of the measure have so far been reluctant to negotiate.

If they can wait it out, the legislative deadline for bill passage will come and go with the bills still in the starting dock. That's only a few days away. Without forward progress, the bills will idle until the next session and may not be picked up again until next year.

It's unrealistic to think the release of footage will single-handedly reform law enforcement agencies. But allowing them to maintain the opaque status quo will result in zero change whatsoever. Hopefully, at least one these bills will move forward before the deadline and start making its way towards the governor's desk.

Well, the Entertainment Software Association, an industry group that largely stumps for the largest gaming studios and publishers in the industry, has come out in opposition to preserving online games, arguing that such preservation is a threat to the industry.

“The proponents characterize these as ‘slight modifications’ to the existing exemption. However they are nothing of the sort. The proponents request permission to engage in forms of circumvention that will enable the complete recreation of a hosted video game-service environment and make the video game available for play by a public audience.”

“Worse yet, proponents seek permission to deputize a legion of ‘affiliates’ to assist in their activities,” ESA adds.

The proposed changes would enable and facilitate infringing use, the game companies warn. They fear that outsiders such as MADE will replicate the game servers and allow the public to play these abandoned games, something games companies would generally charge for. This could be seen as direct competition.

There is a ton of wrong in there to unpack. To start, complaining that MADE's request would allow them to replicate the gaming experience of an online multiplayer game does nothing beyond essentially repeating what MADE is requesting. The whole idea is that these games should be preserved for posterity so that later generations can experience them, gaining an understanding of the evolution of the industry. How could this be accomplished without libraries and museums making the online game playable? And how is that different than what these folks do for non-online games? With that in mind, further complaining that museums might ask for help from others to accomplish this task doesn't make a great deal of sense.

As for the final complaint about these museums making these games playable when gaming companies normally charge for them is nearly enough to make one's head explode. Museums like MADE wouldn't be preserving these games except for the fact that these games are no longer operated by the gaming studios, for a fee or otherwise. What ESA's opposition actually says is that making older online games playable will compete in the market with its constituent studios' new online games. To that, there seems to be a simple solution: the game companies should keep these older online games viable themselves, then. After all, if a decade-old MMORPG can still compete with newer releases, then clearly there is money in keeping that older game up and running. Notably, game publishers aren't doing that. Were ESA's concerns valid, they surely would, unless they hate money, which they do not.

What's ultimately missing from ESA's opposition is what exactly is different about these online games compared with non-online games that already have these anti-circumvention exemptions. The closest it gets is complaining that preserving these online games would require server content that game companies haven't made public in the past. Why exemptions for that should be different than the code for localized games so that emulators can run them is a question never answered. That ESA chose not to offer up a more substantive answer to that question is telling.

FlexiSpy is powerful malware, capable of gathering communications from multiple messaging services, as well as providing GPS location, emails, and phone call records. The purchase of this malware is questionable, considering it's regulated under the UK's Computer Misuse Act. The most obvious limitation of the malware is the fact that it requires physical access to targeted devices. But phones, tablets, and computers are seized all the time by law enforcement officers, and they're sometimes returned to their owners after being searched. Malware like this would allow officers to hitch a virtual ride on someone's phone or laptop, seeing everything they see.

Motherboard asked the Metro Police for more details on this spyware purchase. Unsurprisingly, the Police didn't want to talk about it.

A Met spokesperson told Motherboard in an email "the MPS neither confirm nor deny engagement with FlexiSpy."

The rest of statement was the usual "everything we do is lawful and subject to oversight" boilerplate that accompanies every leaked document or accusation of unlawful surveillance. The Met refused to discuss it further, even as Motherboard provided evidence that an officer had indeed purchased the spyware using a Metro Police email address.

Nearly a year has gone by and the Metro Police still refuse to provide any more details about this purchase. So, Motherboard -- with the assistance of UK solicitors -- is suing the Met for its refusal to discuss the FlexiSpy purchase.

Working on behalf of Motherboard, solicitors from Bindmans LLP filed a complaint with the Independent Police Complaints Commission (now called the Independent Office for Police Conduct, or IOPC).

In a December letter, the Directorate of Professional Standards at the MPS said a chief inspector concluded that Motherboard’s complaint did not need to be professionally recorded, meaning it would not be investigated. The reason given was that Motherboard was not a member of the public who claims have witnessed a piece of misconduct. Motherboard’s legal team for this complaint strongly disagrees with that finding, and has filed an appeal to the IOPC, urging it to call in an independent investigation.

Motherboard is seeking more info on the purchase, as well as how it may have been deployed. In most cases, the use of FlexiSpy would violate UK law, even if used by police officers. There's also the possibility that an officer used his official status to obtain a copy for personal use. Or it could be the copy was purchased simply to observe the software in action and never deployed against any UK citizen. There's no way of telling unless the Metro Police look into it. But so far, the Metro PD doesn't seem very interested in policing its own.

As we noted, this was an obvious SLAPP suit with a bunch of ridiculous claims. On top of that, Murray and Murray Energy also sought an injunction silencing Oliver and HBO, which was classic prior restraint. There was some procedural back-and-forth as HBO sought to remove the case to federal court, which failed. State courts can be more of a crap shoot, but this was such an obvious SLAPP suit that it does not appear to have mattered at all.

On Friday, the judge sent a letter to the various parties which I would say is the judicial equivalent of telling Bob and his lawyers to "Eat Shit." The letter makes it clear that the judge is going to dismiss the case, and agrees entirely with the arguments HBO made in its motion to dismiss:

The Court adopts, with little exception, Defendants' arguments in support of their Motion regarding all issues addressed in the same.

This is not the official order, but that should be coming soon. The judge has asked HBO's lawyers to "prepare and forward a proposed Order, including findings of fact and conclusions of law supporting the Court's ruling. The same shall be forwarded within 20 days via email in Microsoft Word format to the Court..." and gives his own email address. Admittedly, that feels a little lazy on the part of the judge to basically ask the prevailing party to write his order, but I'm sure HBO's lawyers are thrilled with the opportunity to make sure it says exactly what they want. I've seen parties submit "proposed orders" before -- and have seen judge's sign off on them -- but don't recall seeing a judge so directly ask for such a proposed order.

Either way, it's a pretty quick and complete win for Oliver and HBO. Of course, if West Virginia actually had an anti-SLAPP law (spoiler alert: it doesn't), then HBO could also make Murray pay their legal fees (including the fees they'll charge for drafting the order dismissing the case). But, unfortunately, that's not the case here. I'm still hoping that this now encourages Oliver to do an episode on anti-SLAPP laws, because it's a topic that could certainly use his brand of exploration. In the meantime, Oliver did very briefly address the issue on his show last night, saying that now was not the time to discuss or gloat as the dismissal was not yet final (though promising he would address it in the future). Of course, while he was saying that, the human-dressed-in-a-squirrel costume, better known as, Mr. Nutterbutter, held up a sign saying "Eat Shit, Bob!" HBO hasn't put this clip on its YouTube page for me to embed, but here's a screenshot:

These days a lot of people are upset with Facebook, along with many other of its fellow big Internet companies. Being upset with these companies can make it tempting to try to punish them with regulation that might hurt them. But it does no good to punish them with regulation that will end up hurting everyone – including you.

Yet that’s what the bill Congress is about to vote on will do. SESTA (or sometimes SESTA-FOSTA) would make changes that reduce the effectiveness of Section 230 of the Communications Decency Act. While a change to this law would certainly hurt the Facebooks of the world, it is not just the Facebooks that should care. You should too, and here's why.

Section 230 is a federal statute that says that people who use the Internet are responsible for how they use it—but only those people are, and not those who provide the services that make it possible for people to use the Internet in the first place. The reason it's important to have this law is because so many people – hundreds, thousands, millions, if not billions of people – use these services to say or do so many things on the Internet. Of course, the reality is, sometimes people use these Internet services to say or do dumb, awful, or even criminal things, and naturally we have lots of laws to punish these dumb, awful, or criminal things. But think about what it would mean for Internet service providers if all those laws that punish bad ways people use the Internet could be directed at them. Even for big companies like Facebook it would be impossibly expensive to have to defend themselves every time someone used their services in these unfortunate ways. Section 230 means that they don't have to, and that they can remain focused on providing Internet services for all the hundreds, thousands, millions, if not billions of people – including people like you – who use their services in good ways.

If, however, Section 230 stops effectively protecting these service providers, then they will have to start limiting how people can use their services because it will be too expensive to risk letting anyone use their services in potentially wrongful ways. And because it’s not possible for Internet service providers to correctly and accurately filter the sheer volume of content they intermediate, they will end up having to limit too much good content in order to make sure they don’t end up in trouble for having limited too little of the bad.

This inevitable censorship should matter to you even if you are not a Facebook user, because it won't just be Facebook that will be forced to censor how you use the Internet. Ever bought or sold something on line? Rented an apartment? Posted or watched a video? Found anything useful through a search engine? Your ability to speak, learn, buy, sell, complain, organize, or do anything else online depends on Internet services being able to depend on Section 230 to let you. It isn't just the big commercial services like Facebook who need Section 230, but Internet service providers of all sorts of shapes and sizes, including broadband ISPs, email providers, online marketplaces, consumer review sites, fan forums, online publications that host user comments… Section 230 even enables non-commercial sites like Wikipedia. As a giant collection of information other people have provided, if Section 230’s protection evaporates, then so will Wikipedia's ability to provide this valuable resource.

Diminishing Section 230's protection also not only affects your ability to use existing Internet services, but new ones too. There’s a reason so many Internet companies are based in the United States, where Section 230 has made it safe for start-ups to develop innovative services without fear of crippling liability, and then grow into successful businesses employing thousands. Particularly if you dislike Facebook you should fear a future without Section 230: big companies can afford to take some lumps, but without Section 230's protection good luck ever getting a new service that's any better.

And that's not all: weakening Section 230 not only hurts you by hurting Internet service providers; it also hurts you directly. Think about emails you forward. Comment threads you allow on Facebook posts. Tweets you retweet. These are all activities Section 230 can protect. After all, you're not the person who wrote the original emails, comments, or tweets, so why should you get in trouble if the original author said or did something dumb, awful, or even criminal in those emails, comments, or tweets? Section 230 makes many of the ordinary ways you use the Internet possible, but without it all bets are off.

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Over the last week, I've spoken, either on background or off the record, to over a dozen different people on a variety of sides and in a variety of different positions concerning these bills, trying to understand how we got to the point that horrible bills that will undoubtedly do serious harm to the internet -- without actually doing much of anything to stop sex trafficking -- are actually likely to get passed. And the story that emerges is one of a series of blunders, misunderstandings, strategic errors and outside forces that drove things in this direction -- helped along quietly by some anti-internet industries that were all too willing (if not eager) to exploit legitimate concerns about sex trafficking to get what they wanted (without actually helping sex trafficking victims).

Let's start with the blundering. There were both large scale blunders and small scale ones. The large scale blunder is that too many folks who work at the big internet companies failed to recognize how the narrative was shifting on "the internet" over the past two years or so. Despite some efforts to warn people that the tide was shifting, many in the internet world insisted it was all overblown. And, to some extent, they are right. Recent polls show that the public still views all the big internet firms very favorably. But, sometimes a narrative can trump reality and, over the past year especially, the "narrative" is that the public doesn't trust those companies anymore. Some of that is driven by the results of the 2016 election and the (exaggerated) claims of "fake news."

But a narrative can be so powerful that even if it doesn't match up with reality, it can become reality as more and more people buy into it. And, right now, many in the media and in politics have both grabbed onto the "people no longer trust big internet" narrative with a chokehold and won't let go. And the big internet companies seemed wholly unprepared for this.

The second blunder appears to be more specific to Facebook -- and it involves a complete misunderstanding of CDA 230. Last week, I pointed to a big Wired cover story about Facebook, where I called out the reporters for explaining CDA 230 exactly backwards -- falsely claiming that CDA 230 meant they couldn't take a more proactive role in moderating the site. Of course, that's wrong. CDA 230 is explicitly why they can take a more active role.

However, since posting that article, I've heard from a few people at Facebook who told me that the view expressed in the article was actually the view within Facebook. That is, Facebook's own legal and policy team pushed the idea internally that heavy moderation may run afoul of CDA 230. This is wrong. But, incredibly, Facebook's own confusion about how the law works may now make their incorrect belief a reality, as it may have helped lead to the tech backlash, leading to things like SESTA, which would put in place a "knowledge" standard for losing CDA 230 immunity... meaning that companies will be much less proactive in monitoring.

That's a huge, huge blunder.

Next up were the strategic errors. Back in November, the Internet Association -- the trade group that represents the largest internet companies (but not the smaller ones) surprised many people by coming out in favor of a modestly update version of SESTA. As we pointed out at the time, this was selling out the internet way too early and way too cheaply. There are a few different explanations of how this happened making the rounds, but one that has come up repeatedly is that Facebook threw in the towel, believing two things (1) that it's getting hit so hard on so many things, it couldn't risk (falsely) being labeled as "soft on sex trafficking" and (2) it knew that it could survive whatever legal mess was created by SESTA. Some smaller internet companies believe that this second point is one that Facebook actually likes because it knows that smaller competitors will be hobbled. To say that these companies are pissed off at Facebook and the Internet Association would not accurately convey the level of anger that came across. But it wasn't just Facebook. We heard that a few other Internet Association members -- mainly those who don't rely quite as much on CDA 230 -- wanted to just "get past" the issue, and supported the Internet Association cutting whatever deal it could and moving on.

This has greatly pissed off a lot of people -- including many other (smaller) Internet Association members who feel that their own trade association sold them out. And it has greatly pissed off many other groups, including other trade groups representing internet organizations and especially public interest, civil society and free speech organizations, who historically have aligned well with the Internet Association on efforts to protect an open internet. Within these groups, a feeling of trust with the Internet Association has been broken. There is plenty of support for the idea that the Internet Association, with the help of Facebook, got played and made a huge strategic mistake in settling. The Internet Association wouldn't go on record with me, but suffice it to say the organization disputes my characterization of what happened and would really, really prefer I didn't write this post. However, after talking to multiple other people who were deeply involved in negotiations over SESTA, there is a general feeling that the Internet Association caved and did so way too quickly when better, more workable solutions were still on the table. But, in caving, most of those discussions were tossed aside. Many people are mad that the Internet Association, with the help of Facebook, seemed to get desperate and got played right into a bad deal that harms the internet.

And note that unlike the RIAA/MPAA, which the Internet Association was basically set up to mimic as an opposing force, the Internet Association refused to take a hard line stance on this. The RIAA and MPAA don't exactly have a history of caving on issues (even when they should). The Internet Association folded, and many people involved in protecting and building the internet are not at all happy about this. And just as the internet companies failed to recognize the power of the narrative, I'd argue that the Internet Association has failed to grasp the level of anger it has generated with its moves over the last few months as well.

Speaking of the MPAA, its fingerprints are all over SESTA, even as it's tried to keep them mostly out of sight. For years, part of the MPAA's "strategy" against the internet disrupting its business was to tar and feather internet companies for enabling illegal activity totally unrelated to copyright infringement (after realizing that whining about piracy wasn't winning them any sympathy). They tried to focus on drug sales for a while. And terrorism. But it appears that sex trafficking was finally the one that caught on in Congress.

And that leads to the final point: the convenient exploitation of all of the above by "foes" of the open internet and free speech. The MPAA, officially, has been pretty quiet about SESTA, though some of its studios officially endorsed the bill. Going through lobbying records, Disney appears to be the only major studio that officially lobbied on behalf of SESTA, but multiple people suggested that former top 20th Century Fox lobbyist Rick Lane was heavily involved as well. While I don't see his name in any official lobbying disclosure forms, a group pushing for SESTA officially thanked Lane for helping them go around Capitol Hill to stump for SESTA, calling him an "extraordinary partner." And, not surprisingly, Lane recently posted a giddy LinkedIn post, excited about tomorrow's vote, while totally misrepresnting both what SESTA does and the reasons many are concerned about it. Oh, and let's not forget Oracle. The company that has seemingly decided that attacking internet companies is more important than actually innovating has been one of the most vocal supporters of SESTA, and also lobbied heavily in favor of it in Congress.

Thus, a key aspect of how the internet works -- which many of this bill's supporters don't actually understand -- is at serious risk. The internet companies probably should have realized sooner how the narrative was shifting. They probably should have better understood -- and explained -- how CDA 230 actually enables more monitoring and filtering, not less. But, that's not what happened. The Internet Association could have continued to fight, rather than giving in. But none of that happened, creating an unfortunate perfect storm to do serious harm to the internet. And, again, perhaps that would all be worth it if SESTA would actually help stop sex trafficking. But it will almost certainly make the problem worse.

And, that doesn't even get into the fact that the company almost always cited as an example of why we need SESTA, Backpage.com, is almost certainly about to face a ruling in a case saying that Backpage is not protected by CDA 230. The fact that Congress is unwilling to even wait and see how that case turns out (or what a grand jury that is supposedly investigating Backpage decides) suggests that this bill has never actually been about stopping sites like Backpage, but about punching a huge hole in CDA 230 and creating havoc for tons of internet platforms -- especially smaller ones.

This situation is a pretty big mess, and it wasn't helped by misjudgments and strategic errors by various internet companies and the Internet Association. But the effort to undermine aspects of the internet also has some "help" from those who are gleeful about how this is all working out. And it's not because they think this will do a damn thing to stop sex trafficking. And it's really too bad, as the end result of this bill may make it that much harder to actually deal with sex trafficking online.

"The AG’s investigation also found that Spectrum-TWC executives knew that the company’s hardware and network were incapable of achieving the speeds promised to subscribers, but nevertheless continued to make false representations about speed and reliability. The investigation further revealed that while Spectrum-TWC earned billions of dollars in profits from selling its high-margin Internet service to millions of New York subscribers, it repeatedly declined to make capital investments necessary to improve its network or provide subscribers with the necessary hardware."

But the lawsuit also exposed how Charter was gaming an FCC program that uses routers with custom firmware to track real-world ISP performance. The lawsuit also hints at the fact that Charter executives toyed with intentionally creating congestion at peering points in order to extract additional money out of content and transit companies, something you'll recall was at the heart of an industry battle with Netflix a few years ago. Those problems miraculously disappeared with the passage of net neutrality rules that governed interconnection (read: expect this problem to resurface with the elimination of the rules).

Charter, unsurprisingly, has argued that the lawsuit is without merit. It also tried to have the lawsuit dismissed, claiming that the FCC's recent repeal of net neutrality includes a provision (lobbied for by ISPs) that prohibits states from trying to hold ISPs accountable for service shortcomings, be they privacy infractions or net neutrality violations. Fortunately for broadband users stuck under cable's growing U.S. broadband monopoly, New York State's Supreme Court last week shot down that argument (pdf) in a ruling.

The court argued repeatedly that despite the FCC attempts to pre-empt state authority over broadband ISPs, both the FCC repeal and existing federal law make it clear states still have a role to play in holding ISPs accountable for consumer protection:

"Spectrum-TWC fails to identify any provision of the FCA (Federal Communications Act) that preempts state anti-fraud or consumer-protection claims, or reflects any intention by Congress to make federal law the exclusive source of law protecting consumers from broadband providers' deceptive conduct."

Schneiderman's office was quick to applaud the ruling in a statement:

"This decision ensures that our office can continue to hold Charter-Spectrum to account for its failure to deliver the reliable internet speeds it promised consumers. The allegations in our lawsuit confirm what millions of New Yorkers have long suspected — Charter-Spectrum has been ripping you off, promising internet speeds it simply could not deliver."

As we've been noting, Charter, Comcast, AT&T and Verizon lobbyists have been busy trying to gut all state and federal oversight of broadband ISPs in an effort that goes well beyond just killing net neutrality. That should be an obvious problem, given that the combination of limited competition and regulatory capture tends to not end particularly well for American consumers historically (Comcast being exhibit A). But with this ruling and the 26 states busy passing their own net neutrality rules in the wake of the federal repeal, that's going to be a steeper and more expensive uphill climb than many ISP lobbyists anticipated.

The federal government doesn't care. No sacrifice is too great to demand from citizens to keep this country safe from job seekers, victims of violence, and the occasional MS-13 gang member. Rights are optional within 100 miles of US borders and they're completely nonexistent within 25 miles of crossing points. It's this 25-mile cutoff that's key to federal lawsuit arising from trespassing CBP officers and the spy cam they placed on the property of a local who's spent years complaining about the CBP's incursions.

Cyrus Farivar covers the story of Texas rancher Ricardo Palacios at Ars Technica. And it's a good one. Palacios discovered a camera on his property and took it down. Shortly thereafter, the CBP and the Texas Rangers rang him up, demanding the return of their surveillance camera. Palacios refused and was threatened with criminal charges.

Palacios, who had run-ins with local CBP agents going back several years, took the camera as the last straw. He was tired of agents routinely trespassing on his land, and, even after complaining several times, he was frustrated that his grievances were not being heard.

As a possible way to ward off the threat of arrest, he sued the two agencies, along with a named CPB agent, Mario Martinez. Palacios accused them of trespass and of violating his constitutional rights.

"My client is 74 years old, he's a lawyer, been practicing for almost 50 years, he has no criminal history whatsoever, law-abiding citizen, respected lawyer and senior citizen," Raul Casso, one of the attorneys representing Palacios, told Ars. "To have put him in jail would have been—forget the indecency of it—what a way to end a career."

For now, the camera is being held by Raul Casso. Casso wants to introduce it as evidence in Palacios' lawsuit. Central to his lawsuit is the CBP's free-for-all zone, which statutorily permits the CBP to do whatever the hell it wants within 25 miles of a border crossing. The thing is Palacios' property ends 35 miles from the nearest border crossing in Laredo, Texas. That leaves Palacios in the "Constitution-free zone" (100 miles from the border) where he can be subjected to suspicionless searches, but puts him 10 miles past the point where the CBP can enter his property for any reason at all.

Palacios alleges years of illegal behavior by CBP personnel, all seemingly stemming from a stop of his sons by the CBP seven years ago.

[H]is interactions with CBP began in April 2010 when his two sons were stopped at a checkpoint along I-35. When one son, Ricardo Palacios Jr., refused to answer questions, he was taken to a secondary inspection where he was assaulted by a CBP officer. Eventually, after being detained for 90 minutes, he was driven home to the ranch just a few miles away.

Over the next several years, CBP agents roamed "freely about, day or night" on the Palacios ranch, despite his numerous efforts to protest. He even sent a formal letter to a regional CBP supervisor on April 9, 2010. However, the letter doesn't seem to have made any substantive difference.

A cycle of CBP agents making incursions onto the ranch and Palacios telling them to leave continued for years—that is, until he found the camera.

The lawsuit hopes to prevent CBP from entering Palacios' property without permission or probable cause. Palacios isn't close enough to the border for the CBP to deploy its "zero rights recognized" arguments, so the agency is leaning on qualified immunity instead. Even so, it still needs to explain why it installed a camera on private property 35 miles inland. So far, the lawsuit consists only of Palacios' complaint [PDF] and the government's response. No rulings have been made, and the motion [PDF] by Palacios to admit the camera as evidence has yet to be reviewed by a judge.

This may seem like a small incursion only miles from an area the federal government (and the courts that agree with it) have said Americans have zero rights. But it touches on a larger issue. At what point (and at what exact distance) does American life as we know it cease to exist? Where is the bright line that declares rights null and void -- a sacrifice on the altar of border enforcement and national security? These are questions that need to be answered precisely. Punting on these issues will only embolden federal agents to wander further from the border and encroach on the rights of the citizens they're supposed to be protecting.

It's been said, but bears repeating - the vast majority of the Western world plays the same games as these American kids do. They play the same Call Of Duty series, the same PUBG, the same GTA, the same Rainbow Six series, etc. In most cases there is no difference in the code running, except perhaps for translation to other languages. Yet, those other countries don't have the same problem with school shootings. Some countries can count the distance between them in decades, yet the US can barely manage weeks if they're lucky.

There is a major difference between the US and the rest of the world that's causing school violence. Videogames should be one of the first things you can eliminate from the equation due to the above. Yet, there's always some grandstander intent on catering to the ignorant.

I actually think there is a difference that's explained by something more than the mere presence of guns (though, of course, the guns make it easier for people to die needlessly). What a shame some people are so intent on demonising something that it demonstrably cannot be, rather than searching for what it really is.

In second place, it's his response to the game company that infected its customers with malware in the hopes of fighting piracy:

I was wondering if this would be covered here after seeing it elsewhere a few days back. A few thoughts raised in discussions there:

- First, this is clearly illegal. No matter the motivation, they installed malware that has the express purpose of taking someone else's credentials. Furthermore, there's claims that they actually have used the logins obtained and posted screenshots as evidence in their forums. That's another law broken.

- Second, the installer exists on every copy that was installed. While the devs claim it was never triggered, every copy contained malware that was distributed to users' machines.

- Thirdly, while the devs claim it would never have been triggered on an innocent user's machine, they have acted so dishonestly that we cannot simply take their word. How do we know their information about "pirate serial numbers" was accurate? How do we know there wasn't the wrong number in the wrong database or wrongly flagged details? How do we know it couldn't be triggered by a reinstall, legitimate install on another machine, etc.? Even if they think their detection code was perfect (and no code is), there's room for error. That's one major reason I'm opposed to DRM - it inevitably affects innocent people.

- Finally, even if they are correct that *they* never used the malware on innocent people, what about others? From what I understand, they actually told people to disable their anti virus products when installing this because they were (correctly) identifying the installer as malware. As well as the chance their own malware could be misused, they subjected their customers to a non-zero chance of being infected with others.

Honestly, I hope they're prosecuted to the limits of the law. Which shouldn't be hard, since as I understand it they're headquartered in the EU, and we tend to have strict data protection laws. They have committed crimes and need to be punished. Whatever your opinion on piracy, committing further crimes and endangering your customer base is not the way to fight it.

For editor's choice on the insightful side, we've got a comment from Thad highlighting a confusion that happens all the time when it comes to companies banning users, moderating speech, and generally controlling their platforms:

Why do so many commenters here seem to have trouble understanding the difference between "company is legally allowed to control how its service is used" and "this particular instance of the company enforcing its rights was a bad decision"?

Next, we've got an itemized anonymous response to questions about why the FCC is tracking broadband (though it had more of a "why does the government do anything at all?" flavor to it):

> Why should the government be tracking any commercial services availability and pricing?

Certain services are classified as "utilities" are are legally required to be provided to everyone within a certain area. Postal service and telephone service fall in this category. Plumbing is generally regulated by the state or local authorities. Water, gas, and electricity service are regulated and tracked by multiple levels. In many places, it is illegal to have the water or heat shut off without very specific conditions being met.

> What about household plumbing services,

Are you talking about plumbers' work, which needs to meet code and potentially be inspected by appropriate authorities? Or are you talking about water service to a residence, which is often legally required for a building to be "habitable"?

> piano teachers, and shoe sellers? Should not the government track those closely too?

If there is a valid reason for it, maybe. The government could easily have an interest in monitoring the prevalence of grocery stores, given how they are required for food-assistance programs and the impact that food quality and availability can have on health of the population.

> What's the ideological imperative in play here?

Sometimes public infrastructure benefits the public sufficiently that the government has an interest in ensure it is done to a minimum standard.

> Are you satisfied with the very high priced services sold to you by American government?

Not entirely relevant, but are you American?

What services do you think are too expensive?

Everyone I've ever met with municipal broadband has been extremely happy with the price/value ratio, as well as the customer service. Public transportation is a net gain to the economic activity of a city, despite the costs of running it. Government management of healthcare worldwide generally provides better outcomes and lower costs than what we currently have in the US.

> Who tracks the prices/availability/quality of FCC and other government services?

The Government Accountability Office, if you are interested in federal agencies.

Over on the funny side, our first place winner is a mirror of the insightful side, with an anonymous commenter offering a quippier take on games-causing-violence:

Minecraft is pretty popular yet I haven't notice an uptick in preteens applying for construction jobs.

Second place continues to mirror the other side, though rather than the game company that infected everyone with malware, it's A. Cross Tick (hint hint) responding to the game company that ordered all its employees to buy its game and give it great reviews:

Not an employee of Insel

Many people play video games and hope they will be good. You can't always get what you want,

But if you try sometimes, Ooh, you get what you need. So perhaps this will give you Some satisfaction.

Most other video games lack something, And this video game is certainly unlike other games. Did you know that the title doesn't use any repeated letters, Especially the letter e?

Maybe you've been looking for something that Everyone else wants to play as well.

Wild Buster is the bestest game evah!!! 111 !!! Right down to the efficient use of pixels, It reduces photonic bleed at The Edges of

The screen and that keeps the environmental people Happy In So many ways.

Really, this game is so good that Even the programmers who wrote it have bought copies. Very few people would do that, so I think that says Everything about why you should buy this most bestest game evah !!! 111 !!! Wild Buster gets my completely legit 5 Thumbs Up

For editor's choice on the funny side, we start out with one more response to that game company — Stephen T. Stone delivered the ultimate insult:

Damn, even EA isn’t this stupid.

And finally, we've got wereisjessicahyde with an even more radical, crazy, never-been-tried proposal than that wacky idea for game rating systems:

"there's nothing to prevent the child from playing them"

I propose we create a new concept to solve this problem. My idea is that after the child is born someone looks after the child in a role I have coined "parenting" (patent pending).

How it will work is a 'parent' will say to the child "I'm sorry Tarquin, but although I understand that playing 'Call of Doom Medal Shooty Face Death GTA11' will not turn you into a mass murderer, I'm not complete idiot. But I don't think it's suitable for a 9 year old. You're not playing it, go and take the garbage out"

It's so simple it's genius.

That's all for this week, folks!

This week in 2013, the Harlem Shake was still taking the world by storm, and serving as a great example of selective copyright enforcement. WIPO negotiations over access to copyrighted works for the disabled were, as usual, shrouded in secrecy, while an anti-piracy group was threatening the Pirate Party with criminal charges, the RIAA was moaning about Google's lack of an anti-piracy magic wand, and ISPs were gearing up to enact the Six Strikes program. On the other hand, the European Copyright Society was arguing against the idea that linking and framing are forms of infringement, a court tossed out an attempt to block CNET from offering BitTorrent downloads, and the CCIA was making the interesting argument that Germany should be on the Special 301 naughty list... for its attacks on fair use.

Ten Years Ago

This week in 2008, torrent users were fighting back against Comcast's traffic shaping program by amping up their encryption efforts, while Comcast was weakly defending the practice by rolling out non-experts. Australia joined the list of countries considering the idea of kicking file sharers off the internet (even as, the same week, they declared their previous $89-million internet filtering plan a failure). Meanwhile, nobody could actually explain why stopping file sharing is an ISP's responsibility — indeed, as the US freaked out about P2P, the EU was investing in it; and as ISPs were starting to insist they can't offer unlimited access, mobile operators were pivoting to do exactly that.

Fifteen Years Ago

This week in 2003, the Lexmark printer ink case was waking some people up to the DMCA's potential for abuse. The Turner Broadcasting chairman who called all TiVo users thieves was stepping down, while Hollywood was trying to recruit piracy informants, and Congress was trying to hash out a weak "compromise" on copyright. Meanwhile, the news arrived that Overture would be buying Alta Vista, in what appeared to be another nail in the erstwhile search giant's coffin — right around the same time that people were starting to seriously talk about the idea of a Google IPO (which would arrive the following year).

Even though the FBI had to have known searches performed all over the world using one Virginia-based warrant violated Rule 41 limits, appellate judges have declared the FBI agent requesting the warrant wasn't enough of a legal expert to know this wasn't allowed. Two appeals courts have stated suppressing the evidence is pointless because the law changed after the jurisdiction limit violation took place. The appellate decisions have been troubling to say the least, providing further evidence that the good faith exception is the rule, rather than the outlier.

The latest decision [PDF] dealing with the NIT warrant comes from the Third Circuit Appeals Court. It, too, finds the warrant questionable. And it states the government has agreed the warrant was not valid under Rule 41(b).

The Government conceded below that “[a]lthough Rule 41 does authorize a judge to issue a search warrant for a search in another district in some circumstances, it does not explicitly do so in these circumstances.” App. 91 (Government Br. in Opposition to Motion to Suppress) (emphasis added).

The opinion goes on to note the government, having admitted its warrant was bad, then argued it was good because it was apparently thinking of a different part of Rule 41 when it applied for a warrant, even though none of this thought made its way into the affidavit as words.

On appeal, however, the Government curiously has reversed course, and now contends that the NIT was in fact explicitly authorized by Rule 41(b)(4), which provides that a magistrate judge may “issue a warrant to install within the district a tracking device; the warrant may authorize use of the device to track the movement of a person or property located within the district, outside the district, or both.” Fed. R. Crim. P. 41(b)(4) (emphasis added).

According to the Government, under this Rule, “the NIT warrant properly authorized use of the NIT to track the movement of information—the digital child pornography content requested by users who logged into Playpen’s website—as it traveled from the server in [EDVA] through the encrypted Tor network to its final destination: the users’ computers, wherever located.”

Wrong again, says the court, noting the disingenuousness of the government's goalpost move. (All emphasis added by me and not the court from this point forward.)

We need not resolve Werdene’s contention that the Government waived this argument because we find that the Government’s tracking device analogy is inapposite. As an initial matter, it is clear that the FBI did not believe that the NIT was a tracking device at the time that it sought the warrant. Warrants issued under Rule 41(b)(4) are specialized documents that are denominated “Tracking Warrant” and require the Government to submit a specialized “Application for a Tracking Warrant.” See ADMINISTRATIVE OFFICE OF U.S. COURTS, CRIMINAL FORMS AO 102 (2009) & AO 104 (2016). Here, the FBI did not submit an application for a tracking warrant – rather, it applied for, and received, a standard search warrant. Indeed, the term “tracking device” is absent from the NIT warrant application and supporting affidavit.

The court also helpfully finds that computer users have an expectation of privacy in their IP addresses and other identifying info housed in their computers. It points out the government obtained this directly from targets' computers rather than third parties, making this a Fourth Amendment search rather than a Third Party Doctrine case.

But that's where the good news ends for the defendant. The appeals court says the warrant was invalid the moment it was issued, but that this can't be held against the FBI. It rationalizes its opinion this way: suppression of evidence is for deterrence, not for righting the government's wrongs. So, it's OK for the FBI to rely on an invalid warrant because the judge made the error approving it. The FBI was not wrong to rely on the warrant, even though it very likely knew its request violated Rule 41 jurisdictional limits. Then it arrives at this conclusion -- one reached previously by another appeals court:

More importantly, the exclusionary rule “applies only where it ‘result[s] in appreciable deterrence.’” Herring, 555 U.S. at 141 (quoting Leon, 468 U.S. at 909) (emphasis added). Thus, even though Rule 41(b) did not authorize the magistrate judge to issue the NIT warrant, future law enforcement officers may apply for and obtain such a warrant pursuant to Rule 41(b)(6), which went into effect in December 2016 to authorize NIT-like warrants. Accordingly, a similar Rule 41(b) violation is unlikely to recur and suppression here will have no deterrent effect.

In other words, because it's now impossible for the FBI to engage in this violation of Rule 41, there's nothing to be gained by suppressing the evidence. In essence, the court is saying that if the DOJ can get laws changed quickly enough to codify earlier statutory violations, defendants challenging evidence based on legal violations that occurred before the law was changed are shit out of luck. Compare and contrast this to civil rights lawsuits where the courts have awarded good faith to law enforcement for apparent rights violations because they occurred before such acts were declared unconstitutional by precedential opinions. It's "heads I win, tails you lose" in federal courts, thanks to the good faith exception.

More cases will reach the appellate level but it hardly seems likely any of those will result in suppressed evidence for Playpen defendants. These findings will be reached despite most appellate judges declaring the underlying warrants void from the moment they were issued. Defendants asking for suppression are going to run into judges willing to forgive the FBI both before and after the fact, which means there's very little justice left in the justice system's tanks.

So it's no surprise that game studios strategize on how to get their games in enough customer hands to generate reviews. Still, one studio's strategy has massively backfired. Insel Games out of Malta recently released Wild Buster, it's latest title. Sadly, in the all important initial release window, the game was not generating enough reviews to result in a general review score on the game page. Those scores are often used by consumers to quickly decide whether a title deserves their attention at all and a lack of a score can indicate that the game isn't good enough to even warrant a look. Insel's CEO, Patrick Steppel, decided to address this with a strongly-worded email to his own staff insisting that they all buy the game and review it, despite having had a hand in making the game. If employees refused to do this, Steppel warned that it could mean that they would no longer have a job at the studio.

“I had [sent] an email earlier but I was told that some of you announced to colleagues that you do not want to make a purchase of the game and/or a review. Frankly, this leaves me pretty disappointed. Of course I cannot force you to write a review (let alone tell you what to write) - but I should not have to. Neglecting the importance of reviews will ultimately cost jobs. If WB fails, Insel fails, IME fails and then we all will have no job next year. So I am asking you either of do the following: buy the game and present me the receipt until Friday night for which (together with a claim form) you will be re-imbursed within 24h or explain to me tomorrow why you do not wish to do this. I would like to discuss this individually and privately with each of you and will follow up.”

Corresponding with the timing of this email was a deluge of reviews suddenly washing over the game's Steam page, all of them glowingly positive. This, as many of you will know, is a form of astroturfing and it's plainly unethical. The point of reviews is for Steam customers to get a sense of what other Steam customers think of a game so as to inform their purchasing decisions. It is not a place for those who made the game to surreptitiously fool customers into thinking a game is better than it is by posting reviews from a clearly biased source. For the CEO of a studio to suggest employees do this at the end of a pointed employment-gun is all the more galling.

And, ultimately, ineffective, given that Valve has responded from pulling every single Insel Games product from its marketplace.

In a post last night on the Steam forums, a Valve representative wrote that as a result of this new information, the store has pulled all of Insel Games’ products. “The publisher appears to have used multiple Steam accounts to post positive reviews for their own games. This is a clear violation of our review policy and something we take very seriously. For these reasons, we are ending our business relationship with Insel Games Ltd. and removing their games from our store. If you have previously purchased this game, it will remain accessible in your Steam library.”

Laughably, Streppel has publicly admitted to sending out the email while also insisting that he will appeal Valve's decision. What the basis of that appeal could be, given his admission, is anyone's guess. Streppel also insists that he didn't mean to threaten anyone's job and that he has not punished any employee that refused to write a review or buy the game, although that kind of gaslighting likely won't find much purchase in a gaming public that doesn't look kindly upon this kind of subterfuge.

So, the lesson is that game studios should take the efforts they would spend conniving over how to fool customers and just make great games instead. Otherwise, the backlash may be more than they can handle.

Last year, IMDb secured a temporary injunction against the state of California, forbidding it from enforcing the law while the courts sorted out its constitutionality. That day has arrived. A federal court has declared the law unconstitutional and permanently blocked California from going after IMDb because Hollywood producers participate in discriminatory hiring. (h/t Jacob Gershman)

The decision [PDF] is short. It takes only six pages for the district court to destroy the state's arguments. First, it tells the state it's not going to apply a lower First Amendment standard of scrutiny to its awful law.

California and SAG-AFTRA provide no reason to apply a lower level of judicial scrutiny to the statute than was applied at the preliminary injunction stage. AB 1687 cannot properly be considered a regulation of voluntary commercial contracts rather than a speech restriction. Upon the request of a subscriber to IMDbPro, the law requires IMDb to remove age-related information from its public-facing website, IMDb.com, regardless of the source of the information on IMDb.com. The law expressly contemplates that it will impact not just information obtained pursuant to a contractual relationship, but also information provided by members of the public…

That's just the court's warm-up. It gets worse for the state from there.

[A]s California concedes, AB 1687 is not properly considered a generally applicable law; moreover, its effects on expression are far from incidental. AB 1687 is a direct restriction on speech. The law prohibits certain speakers from publishing certain truthful information – information that, in many instances, is supplied by members of the public – because of concerns that a third party might use that information to engage in illegal conduct.

The court also points out the targeted speech isn't commercial speech, which receives fewer Constitutional protections.

Nor can AB 1687 plausibly be characterized as a commercial speech restriction. The speech at issue is factual information about entertainment professionals, conveyed – at least on IMDb.com – in a manner unconnected to any commercial transaction… The fact that IMDb has a financial interest in people's reliance on IMDb.com for information doesn't transform the age-related information restricted by AB 1687 into commercial speech.

The court also has some choice words for the Screen Actors Guild, which really should have known better than to have supported this censorial garbage.

SAG-AFTRA contends that publication of facts about the ages of people in the entertainment industry can be banned because these facts "facilitate" age discrimination – an argument that, if successful, would enable states to forbid publication of virtually any fact. There is no support in controlling case law for the proposition that a state may ban publication of facts to impede a third party’s possible reliance on those facts to engage in discrimination.

If SAG really wants to do something about discrimination, it should use its collective weight to make changes in the studio system, rather than enable censorship and threaten the same protections that allow movies to be made without government interference.

It's a stupid law and the district court does everything but directly call it stupid during the course of its six-page decision. It points out the state has plenty of ways of curbing age discrimination that don't involve walking all over the First Amendment. The fact that previous legislative efforts have failed is no reason for the state to decide the publication of facts must be banned. The court also notes neither the state nor SAG have shown any causal link between IMDb's publication of actors' ages and age discrimination in Hollywood studios. Even if IMDb's publications make it "easier" for studio heads to discriminate (a point the court does not concede), the statutory remedy deployed by California would only force IMDb to remove age info at the request of subscribers, which means there would still be plenty of data available for studios to "misuse."

It's a resounding loss for both entities -- both of which should have known the law was destined for the federal court chopping block while it was still in its infancy. The fact the law even exists seems to indicate both the State of California and the Screen Actors Guild are too cowardly to confront Hollywood studio execs directly.

Finally, the court calls the state and SAG out for being so jacked up about punishing IMDb that they can't even recognize the sort of discrimination they're dealing with.

Although the previously-discussed flaws in the statute are more than enough to strike it down, one final point bears mention. The defendants seem to misunderstand the problem they hope to address through AB 1687. The legislative materials repeatedly cite an article discussing "[t]he commonplace practice of casting a much younger female against a much older male" and lamenting the significant underrepresentation of women in leading roles and in directors' chairs. The defendants describe this as a problem of "age discrimination." While that may be accurate on some level, at root it is far more a problem of sex discrimination. Movie producers don't typically refuse to cast an actor as a leading man because he's too old for the leading woman; it is the prospective leading woman who can't get the part unless she's much younger than the leading man. TV networks don't typically jettison male news anchors because they are perceived as too old; it is the female anchors whose success is often dependent on their youth. This is not so much because the entertainment industry has a problem with older people per se. Rather, it's a manifestation of the industry's insistence on objectifying women, overvaluing their looks while devaluing everything else. The defendants barely acknowledge this, much less explain how a law preventing one company from posting age-related information on one website could discourage the entertainment industry from continuing to objectify and devalue women. If the government is going to attempt to restrict speech, it should at least develop a clearer understanding of the problem it's trying to solve.

That's some fine bench-slapping. Hopefully, it will deter the state and its SAG helpers from rushing back to the legislative halls to take another stab at crafting more First Amendment-violating stupidity.

The U.S. government played a central role in the global adoption of e-Passports. These high-tech passports have smart chips--which store traveler information--and cryptographic signatures, an important security feature that verifies the validity and legitimacy of the passport and its issuing government agency. For more than a decade, the United States has required that countries on the visa-waiver list issue machine-readable e-Passports. Since 2015, the United States has further required that all visitors from countries on the visa-waiver list enter the United States with an e- Passport. Despite these efforts, CBP lacks the technical capabilities to verify e-Passport chips.

To be clear: it's not that CBP doesn't use the chips at all. It does download the info from the chips. But it ignores the cryptographic signatures and doesn't verify that the information hasn't been tampered with. Incredibly, the letter notes that CBP was informed of this problem all the way back in 2010 by the GAO, but has still not done anything about it.

CBP has deployed e-Passport readers at many ports of entry, which CBP personnel use to download data from the smart chips in e-Passports. However, CBP does not have the software necessary to authenticate the information stored on the e-Passport chips. Specifically, CBP cannot verify the digital signatures stored on the e-Passport, which means that CBP is unable to determine if the data stored on the smart chips has been tampered with or forged. CBP has been aware of this security lapse since at least 2010, when the Government Accountability Office (GAO) released a report highlighting the gap in technology. Eight years after that publication, CBP still does not possess the technological capability to authenticate the machine-readable data in e-Passports.

As with a number of recent letters that Wyden has been sending that touch on areas around the government falling down when it comes to encryption, I'm assuming that this latest one comes from the work that Chris Soghoian is doing since being hired full time to work for Senator Wyden. Soghoian spent years calling out bad encryption practices of all sorts of organizations in the past, and it's nice to see that he's now able to (hopefully) shame the government into doing things better as well.

At a pop-up market stall just off Canal Street, the Madison Avenue of the unauthenticated, shoppers have spent the last week snapping up off-price, jeans, hoodies, T-shirts and boxer briefs with a familiar, almost-right logo: Diesel Deisel. Sure, the "i" and "e" are on the wrong side of their usual do-si-do. But you get what you pay for. They're $69.99; Diesel jeans generally start well over $200. Forget it, Jake -- it's Chinatown.

Companies like Diesel spend significant resources chasing down counterfeiters and stamping them out. According to Renzo Rosso, the founder of Diesel and president of its parent company, the Only the Brave Group, the label shut down 86 websites hawking fake products last year. But Mr. Rosso was crammed into the small, wood-paneled shop on Friday with no intention of dampening Diesel. He'd created it.

Rosso has realized that even unauthorized copies act as marketing for the original, and help to boost the brand. By producing his own fake versions, Rosso not only spreads the word about his company's products, but he even makes money from it. Moreover, by introducing a rival into the market of copies, he probably dilutes the other fake brands and maybe even their profits. It's a win-win-win-win situation, which Gucci too is keen to exploit:

Gucci has riffed on its own bootlegs (and styled its own "Guccy" logo) and set up shop with Daniel Day, better known as Dapper Dan, the counterfeit couturier it had once threatened out of business.

It's such a simple, clever idea, you wonder why no one has thought of it before. And the answer is -- they have. As Techdirt reported nearly nine years ago, a South African t-shirt designer sold its own counterfeit line and used that to boost awareness of the original products, while also being able to differentiate and sell into new markets -- and make money too. What's significant about the latest examples in the New York Times story is that it is top brands that have realized the power of this approach. And even if the idea of coming out with authorized "counterfeits", as Diesel and Gucci are doing, is not original, that somehow seems appropriate.

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