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Techdirt. Easily digestible tech news... en-us Techdirt. Tue, 15 Dec 2020 13:30:00 PST Gaming Like It's 1925: Get Ready For The Next Public Domain Game Jam Leigh Beadon Sign up for the Public Domain Game Jam on »

In a couple weeks, the public domain in the US will expand for the third year in a row, as works published in 1925 finally run out of copyright protection — and just like we have for the past two years, we're celebrating and showing off the benefits of a robust public domain with a game jam: Gaming Like It's 1925.

We're inviting everyone to try their hand at using newly public domain material from 1925 to create a digital or analog game this January. Whether you're an experienced game designer or just someone trying their hand at it, the public domain is an excellent source of all kinds of game material from story inspiration to art and music assets, so sign up for the jam at The jam page has full details on the rules, links to some lists of material entering the public domain, and information on easy game-building tools that can help newbies and veterans alike with the challenge of creating a game in a month.

As usual, we'll be awarding prizes in six categories (the winners of the last jam are linked below, and you can read our judges' thoughts on them here):

We've also got another great panel of new and returning judges this year:

Gaming Like It's 1925 officially kicks off on January 1st, the same day that the new material enters the public domain, and runs until the end of the month — but you can sign up now and start making plans. Both of the past jams have resulted in some really cool, creative games that demonstrate why a growing public domain is so valuable, and we're all excited to see what our participants come up with this time around!

it's jam time
Tue, 15 Dec 2020 12:04:54 PST Huawei Is Crafting Facial Recognition Tech That Will Make It Easier For The Chinese Government To Target Citizens It Doesn't Like Tim Cushing The Chinese government's war against its own citizens continues. The repression and persecution of China's Uighur population has been well-documented. The Chinese government is fighting a surveillance war on multiple fronts, beginning with its own citizens, who must maintain a positive "citizen score" to live life without too much government harassment. Its attempt to hold Hong Kong to the same oppressive standard has been met with significant resistance. But, in the end, China will consummate its takeover of Hong Kong with a removal of its independence.

Uighur Muslims have been the focus of the government's unmitigated wrath for years. China wants these residents either locked up or living in another country entirely. And it's pressuring tech companies to assist in their oppression. Far too many have complied. Documents seen by the Washington Post show Huawei has decided to be the Chinese government's posse, helping the government locate and target Uighur residents.

The Chinese tech giant Huawei has tested facial recognition software that could send automated “Uighur alarms” to government authorities when its camera systems identify members of the oppressed minority group, according to an internal document that provides further details about China’s artificial-intelligence surveillance regime.

The tech Huawei is developing attempts to determine a person's age, sex, and ethnicity using only facial shots. Given that this tech hasn't proven itself able to reliably recognize faces, it seems unlikely it will perform these extra tasks with better accuracy. False positives are guaranteed. And a false Uighur positive in China means citizens will be detained and subjected to a lifetime of brutal punishment just because they happened to trigger a Huawei "alarm."

According to Huawei, this proposed system has not gone live.

Both companies have acknowledged the document is real. Shortly after this story published Tuesday morning, Huawei spokesman Glenn Schloss said the report “is simply a test and it has not seen real-world application. Huawei only supplies general-purpose products for this kind of testing. We do not provide custom algorithms or applications.”

Maybe this is true. But it's also the sort of statement a company would release when being pressured by a government to avoid revealing ongoing surveillance programs.

Even if the system isn't live at the moment, that doesn't change the fact that it will be live at some point in the future. And the Chinese government will have a tool it can use to target a small percentage of its population -- a tool whose ability to recognize faces alone is already questionable. Adding in other factors only increases the possibility of false positives.

Then there's the mission creep. If it "works" for China, other countries looking to target people for their sex, race, or age will have a tool that's been field-tested and ready for deployment. China's not the only authoritarian regime looking for exciting new ways to persecute certain citizens. Following through with development of this tech means Huawei will be the go-to source for countries looking to add to their human rights violation rap sheets.

Tue, 15 Dec 2020 10:44:00 PST DHS Cyber Warriors Issue Warning About Massive Hacking Campaign, Disclose They've Been Hacked A Day Later Tim Cushing Welp. Everything is compromised. Again.

Reuters was the first to report suspected Russian hackers had gained access to hundreds of SolarWinds customers, including US government agencies.

Hackers believed to be working for Russia have been monitoring internal email traffic at the U.S. Treasury and Commerce departments, according to people familiar with the matter, adding they feared the hacks uncovered so far may be the tip of the iceberg.


The cyber spies are believed to have gotten in by surreptitiously tampering with updates released by IT company SolarWinds, which serves government customers across the executive branch, the military, and the intelligence services, according to two people familiar with the matter. The trick - often referred to as a “supply chain attack” - works by hiding malicious code in the body of legitimate software updates provided to targets by third parties.

A full report by FireEye (which was also a victim of this hacking) details the process used to gain illicit access, which involved leveraging bogus signed components crafted by the hackers and distributed by an unaware SolarWinds. The widespread hacking campaign may have begun as early as March of this year. That it was only discovered now means the fallout from this will continue for months to come.

Here's how the backdoor works, according to FireEye:

SolarWinds.Orion.Core.BusinessLayer.dll is a SolarWinds digitally-signed component of the Orion software framework that contains a backdoor that communicates via HTTP to third party servers. We are tracking the trojanized version of this SolarWinds Orion plug-in as SUNBURST.

After an initial dormant period of up to two weeks, it retrieves and executes commands, called “Jobs”, that include the ability to transfer files, execute files, profile the system, reboot the machine, and disable system services. The malware masquerades its network traffic as the Orion Improvement Program (OIP) protocol and stores reconnaissance results within legitimate plugin configuration files allowing it to blend in with legitimate SolarWinds activity. The backdoor uses multiple obfuscated blocklists to identify forensic and anti-virus tools running as processes, services, and drivers.

SolarWinds boasts over 300,000 customers, including 425 Fortune 500 companies, all ten of the top ten telcos, the Pentagon, State Department, NSA, DOJ, and the White House. Its long list of customers (which now returns a 404 error) all but ensures every passing hour will add another victim to the list.

According to SolarWinds' post-attack-discovery SEC filing, it believes only a small percentage of its customers are affected. But even a fraction of its users is still a gobsmacking number of potential victims.

On December 13, 2020, SolarWinds delivered a communication to approximately 33,000 Orion product customers that were active maintenance customers during and after the Relevant Period. SolarWinds currently believes the actual number of customers that may have had an installation of the Orion products that contained this vulnerability to be fewer than 18,000.

The attack is serious and widespread enough that the DHS's cybersecurity arm has issued a warning -- one that says the only proven way to mitigate damage at this point is to disconnect affected hardware from the internet and pull the plug on Orion software. The CISA (Cybersecurity and Infrastructure Security Agency) Emergency Directive says this is a persistent threat -- one not easily patched away.

CISA has determined that this exploitation of SolarWinds products poses an unacceptable risk to Federal Civilian Executive Branch agencies and requires emergency action. This determination is based on:

  • Current exploitation of affected products and their widespread use to monitor traffic on major federal network systems;

  • High potential for a compromise of agency information systems;

  • Grave impact of a successful compromise.

CISA understands that the vendor is working to provide updated software patches. However, agencies must wait until CISA provides further guidance before using any forthcoming patches to reinstall the SolarWinds Orion software in their enterprise.

The directive goes on to mandate reporting on infected systems and for affected agencies to assume the system remains compromised until CISA gives the all-clear. Unfortunately, this grave warning comes from an agency that is also compromised. CISA issued the directive on December 13. Here's what was reported in the early hours of December 14:

US officials suspect that Russian-linked hackers were behind the recent data breach of multiple federal agencies, including the Departments of Homeland Security, Agriculture and Commerce, but are continuing to investigate the incident, multiple sources told CNN Monday.

CNN learned Monday that DHS' cyber arm, which is tasked with helping safeguard the nation from attacks by malicious foreign actors, is among at least three US government agencies compromised in the hack.

In addition to CISA, government officials also suspect breaches at the US Postal Service and the Department of Agriculture. And the Defense Department is in the process of assessing its own exposure, if any. If any of its components have been breached, it has yet to be publicly reported.

The Russian government is denying involvement, but the evidence seems to point to "Cozy Bear," the offensive hacking wing of Russia's intelligence services. Unfortunately, SolarWinds' dominance in the network management field made it that much easier for the attack to scale. And with CISA compromised, the government's attempts to mitigate damage will be slowed as its own cybersecurity wing attempts to rid itself of a persistent threat.

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Tue, 15 Dec 2020 09:33:03 PST FTC's Misses Opportunity To Understand Social Media; Instead Goes For Weird Fishing Expedition Against Odd Grouping Of Companies Mike Masnick On Monday, the FTC announced that it was issuing what's known as 6(b) orders to nine social media and video streaming companies, demanding a fairly massive amount of information regarding their data collection and usage policies, as well as their advertising practices. To me, this is a huge missed opportunity. If the FTC is truly trying to gain a better understanding of data collection, privacy, and advertising practices, perhaps to better inform Congress on how to, say, pass a truly comprehensive (and useful?!?) privacy legislation, then there are ways to do that. But this... is not that. This looks like a weird fishing expedition for a ton of unrelated information, from an odd selection of nine companies, many of whom are in a very different business than the others. It leaves me quite perplexed.

First, let's look at the odd selection of companies. The letters are going to:

  • Amazon (apparently including Twitch)
  • Bytedance (TikTok)
  • Discord
  • Facebook
  • Reddit
  • Snap
  • Twitter
  • WhatsApp (owned by Facebook)
  • YouTube
Okay, so they've definitely focused on many of the big players, but they've also left out a ton as well. Where's LinkedIn? Or Github? Or WeChat? Or Pinterest? Or Quora? They list Facebook and Whatsapp... but not Instagram? Where's Zoom? Now it's true that sometimes the FTC will randomly sample a bunch of companies in a particular industry to get a look at certain practices -- but for that to make sense, you want to sample from a set of similarly situated companies. This is... not that.

For the smaller companies on the list, such as Reddit and Discord, the FTC demanding they file a ton of paperwork in a very short time frame is going to mean a tremendous waste of time.

The second concern is the broad nature of the requests. The "sample order" is massive. There are 53 separate requests, many with multiple sub-parts. They're not just asking for specific information, but rather going on what appears to be an incredibly broad fishing expedition for information about a wide variety of practices at all of these companies -- including broad demands for future strategies and plans. For example, beyond just information on the number of users, it demands all documents relating to "business strategies or plans," "research and development efforts," "strategies or plans to reduce costs, improve products or services..." It also seems to be demanding all "presentations to management committees, executive committees, and boards of directors."

That feels like a fishing expedition, rather than an attempt to actually understand data collection and usage practices.

There are categories of information included here that I think it would be useful for the FTC to understand. But there's just so much information requested that it seems likely to bury the useful information.

The one FTC Commissioner who dissented from this effort, Noah Joshua Phillips, raises important questions in his dissent:

Effective 6(b) orders look carefully at business practices in which companies engage in a manner designed to elicit information, understand it, and then present it to the public in way that is usable and can form a basis for sound public policy.

The first step is to select a group of recipients that will permit such examination, usually a group of firms engaged in conduct that can be compared. But the logic behind the choice of recipients here is not clear at all. The 6(b) orders target nine entities: Facebook, WhatsApp, Snap, Twitter, YouTube, ByteDance, Twitch, Reddit, and Discord. These are different companies, some of which have strikingly different business models. And the orders omit other companies engaged in business practices similar to recipients, for example, Apple, Gab, GroupMe, LinkedIn, Parler, Rumble, and Tumblr, not to mention other firms the data practices of which have drawn significant government concern, like WeChat. The only plausible benefit to drawing the lines the Commission has is targeting a number of high profile companies and, by limiting the number to nine, avoiding the review process required under the Paperwork Reduction Act, which is not triggered if fewer than ten entities are subject to requests.

Phillips calls out the same broad demands I raised above regarding business plans, R&D and presentations, noting:

Such a request would be suited to an antitrust investigation. But as part of an inquiry ostensibly aimed at consumer privacy practices, it amounts to invasive government overreach. And that is just one of the order’s 50-plus specifications.

And, finally, he highlights how this effort is just demanding way too much information to be of use for a comprehensive policy recommendation:

The biggest problem is that today’s 6(b) orders simply cover too many topics to make them likely to result in the production of comparable, usable information—yet another feature proper oversight and public comment could have flagged. Rather than a carefully calibrated set of specifications designed to elicit information that the agency could digest and analyze as a basis for informing itself, Congress, stakeholders, and the public, these 6(b) orders instead are sprawling and scattershot. Their over 50 specifications, most with numerous and detailed subparts, address topics including, but not limited to: advertising (reach, revenue, costs, and number and type); consumer data (collection, use, storage, disclosure, and deletion); as noted above, all strategic, financial, and research plans; algorithms and data analytics; user engagement and content moderation; demographic information; relationships with other services; and children and teens (policies, practices, and procedures).

Recipients of 6(b) orders typically negotiate to limit their productions, to tailor them in light of their specific business models and business practices. Perhaps the Commission will push back on attempts to do so, devoting additional lawyers to litigating the orders and having a federal judge oversee them, rather than OIRA. Or negotiation may reduce the burdens. But if that happens, each recipient will be responding to a different set of negotiated specifications. That certain of the companies in question have very different business models makes this even more likely. The end result of that is, say, the agency learning a lot about one recipient’s advertising practices, but not as much about its algorithms. For another recipient, the agency might receive information about privacy practices but very little about its plans to expand. Each of the nine recipients will produce differing, if any, amounts of information to each of the 50-plus specifications.

I actually think it would be a good thing for the FTC to better understand how these companies work and their practices. I think it could be useful for them to gain such an understanding, and then make recommendations on a comprehensive federal privacy law. But I don't see how this fishing expedition does any of that. Instead, it just asks for basically everything and the kitchen sink from a somewhat random selection of companies, some of whom will have difficulty producing all of this information.

Tue, 15 Dec 2020 06:33:12 PST Space X Gets $886 Million From FCC To Put Very Small Dent In U.S. Broadband Gaps Karl Bode For a country that likes to talk about "being number one" a lot, that's sure not reflected in the United States' broadband networks, or the broadband maps we use to determine which areas lack adequate broadband or competition (resulting in high prices and poor service). While the U.S. government doesn't genuinely know who has broadband and who doesn't (in part thanks to telecom lobbyists who have fought more accurate mapping to obfuscate monopolization) the best estimates we do have aren't pretty.

An estimated 42 million Americans (double FCC claims) still don't have any broadband whatsoever, despite 30 years of industry subsidization. Another 83 million Americans live under a broadband monopoly, usually Comcast. Tens of millions more Americans live under a duopoly where their only choice is again either Comcast, or some regional phone company that can't be bothered to upgrade its aging DSL lines because it's not profitable enough, quickly enough for Wall Street's liking.

Enter Space X's Starlink, which is promising to cover the night sky in a constellation of low orbit satellites capable of delivering fairly decent broadband, pretty much anywhere. Early beta impressions have been promising, delivering speeds upwards of 100 Mbps for $100 per month (plus a $500 up front hardware fee). It's very promising tech, if you ignore the night sky pollution the technology creates (which Musk promised wouldn't occur) that's hampering scientists and researchers.

It's promising enough that the FCC this week doled out $886 million in subsidies from the agency's Rural Digital Opportunity Fund (RDOF), to deliver broadband to 642,925 rural homes and businesses in 35 states. It's part of a total $9.2 billion in new funding being thrown at an industry that doesn't have a particularly good track record on actually spending this kind of money responsibly. It's not entirely clear why Musk's wealthy business empire needed the extra taxpayer help, or what Starlink exactly intends to do with the money (since it didn't want to tell the press):

"FCC funding can be used in different ways depending on the type of broadband service. Cable companies like Charter and other wireline providers generally use the money to expand their networks into new areas that don't already have broadband. But with Starlink, SpaceX could theoretically provide service to all of rural America once it has launched enough satellites, even without FCC funding.

One possibility is that SpaceX could use the FCC money to lower prices in the 642,925 funded locations, but the FCC announcement didn't say whether that's what SpaceX will do. We asked SpaceX and the FCC for more details and will update this article if we get any answers."

Consumer groups have looked at the Starlink bid more closely and have found that Musk's company exploited a very broken FCC bidding system to obtain money for projects in many urban, affluent areas that don't actually make a lot of sense for a fund designed to help shore up access to low-income and rural communities:

"By bidding for subsidies assigned to dense urban areas, Musk's firm and others were able to get potentially hundreds of millions in subsidies meant for people and businesses in rural areas that would never see broadband deployment without the government's help."

Again, a company run by one of the wealthiest men on the planet exploited a broken FCC system to get taxpayer/ratepayer money that could have gone to actual areas in need. Instead, the company got nearly a billion by promising to service a handful of properties near airports and luxury golf courses it never intended to target anyway. Kind of ironic for a guy who has recently been whining about moving to Texas for (at least in part) unfair taxation reasons.

To be clear, Starlink will be damn near revolutionary for Americans stuck without any service at all. It will also be a huge step up for users stuck on older, expensive, slow, and capped traditional satellite systems. But those expecting Starlink to be a nationwide game changer will likely be disappointed. The $600 first month cost is too steep for the countless Americans who don't have broadband because it's too heavily monopolized and therefore expensive. Musk himself has also made it clear the service simply won't have the capacity to offer service in parts of the U.S. with any significant population density.

In other words: it's not going to seriously challenge the real reason U.S. broadband is so insufferably mediocre and expensive: the regional monopolies enjoyed by telecom giants, and the ocean of folks they pay to keep it that way.

While an improvement over traditional satellite, Starlink also isn't a serious replacement for fiber. It's still not clear what kind of odd, post-net neutrality network management and throttling practices the company will engage in once its networks are fully loaded. If America could be bothered to actually do a serious audit of the state and federal subsidies given the telecom industry over the last 30 years, you'd find taxpayers likely already paid for fiber to every home in America several times over. Instead, those billions went toward a rotating selection of routinely half completed networks and a whole lot of fraud.

That's not to say subsidization doesn't have its role and very clear benefits in shoring up access when done right. But as we keep pointing out, more subsidies can't fix regulatory capture. They can't fix a Congress in bed with telecom lobbyists. They can't fix U.S. broadband policy that has, for twenty years now, basically been dictated by the biggest and most powerful sector monopolies. So while it's absolutely good that Starlink is taking steps to shore up access, those expecting a total sector revolution at the hands of Elon Musk probably shouldn't hold their breath.

baby steps
Tue, 15 Dec 2020 03:26:12 PST Eighteen Sheriff's Deputies Waited 500 Yards Away While A Burglar Terrorized A 70-Year-Old Disabled Man Tim Cushing

I will faithfully serve and protect my community…

- A Hippocratic Oath for Policing, the National Police Foundation

To Protect and To Serve

- The Los Angeles Police Department motto, adopted in 1955

[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors…

- US Supreme Court, DeShaney v. Winnebago County, 1989

There is no legal obligation for police officers to protect citizens. There may be a moral obligation. And there may be the obligation thrust on certain departments who've adopted mottos or decorated their badges with "protection" niceties, but that obligation only goes as far as the courts demand… which is nowhere.

That's why we end up with this sort of protection/service far too often. (h/t WarOnPrivacy)

Seventy-year-old Bill Norkunas, a childhood polio survivor, headed over to the light and flicked it on hoping to scare away whoever was there. Instead, the light was a beacon drawing a young man to his front door, a door made of glass.

And then for the next 15 minutes, Norkunas stood there, barefoot and unclothed, with his crutches, on one side of the glass pane trying to steady a gun in his trembling hand while the stranger stood on the other side, pounding on the door, banging it with his hip or gnawing at the thick hurricane-grade glass with a garden paver.


And as bewildering, and just as terrifying to him, is the knowledge that a squad of Broward sheriff’s deputies responded to his Tamarac neighborhood, but none came close to his home to stop the man. Instead, they waited down the street until he walked over to them and surrendered, witnesses told the South Florida Sun Sentinel.

It wasn't just Norkunas involved in this. The man trying to break into his home had attempted to do the same thing at other houses in the neighborhood. 911 was besieged by calls from Norkunas' neighbors. But apparently nothing they said made the Broward County Sheriff's Department any more willing to confront the reported burglar. For this entire ordeal, deputies waited hundreds of feet away, apparently waiting for the problem to solve itself.

Instead of stopping the would-be-intruder at Norkunas’ door, witnesses said, the deputies stayed down the street and around a corner, some 500 yards away while Norkunas and his neighbors flooded the 911 emergency communications system begging for help for almost 15 minutes.

This was an actual emergency. The 70-year-old man asked 911 operators if it was OK for him to shoot the intruder if he managed to make his way into his house. Neighbors calling the dispatchers expressed similar concerns for the man's safety. Meanwhile, 18 deputies stood by while this information was relayed, never moving for the fifteen minutes it took for the burglar to give up and surrender to law enforcement.

And the Broward County Sheriff's Department -- the same department that received deserved heat for its inadequate response to the Parkland school shooting in 2019 -- has offered no satisfactory explanation for this lack of effort when citizens' lives were on the line.

Norkunas said a sergeant explained procedures for setting up a perimeter so that Johnson could not escape, but also admitted they could have done better.

That's a problem. There were 18 deputies at the scene. It only would have taken a handful to approach Norkunas' house and attempt to apprehend the suspect. Not a single officer did. Instead, the amassed group of useless deputies lucked into an arrest when the suspect found them and turned himself in.

Because of this inaction, the relationship between the neighborhood and their alleged "protectors" has been irreparably damaged. One neighbor installed security cameras. Another stated she no longer "counts on police" to handle dangerous situations. And Nakounas has taken to carrying his gun with him at all times, even when taking his dog for a walk.

When the Supreme Court said police have no obligation to protect citizens, they took this to heart. The end result has been a stream of horrendous and horrifying incidents where police are willing cast aside their moral obligations just because they couldn't be held legally liable for failing to "do better." Not giving a shit still pays off, ensuring officers return home safely every night, even if those paying their salaries end up dead.

Mon, 14 Dec 2020 19:56:07 PST Owner of 'Derby Pie' Trademark Sues Newspaper For Using The Term, Publishing Recipe Timothy Geigner Long-time Techdirt readers may recall that the "Derby Pie", a notable dessert sold in Kentucky chiefly around the time of The Kentucky Derby, has been the previous subject of trademark issues. Way back in 2013, the EFF posted a special recipe for its "mean-spirited censorship pie" after Kern's Kitchen, headed by Alan Rupp, went on a threat blitz against a bunch of blogs for posting their own recipes for "derby pie". Rupp has a trademark on the term, see, and seems to think that trademark means that he is in universal control of anyone using it for their own recipes, regardless of whether those recipe posts cause any customer confusion, are used in actual commerce, or generally violate the other aspects of trademark protection statutes. He's wrong about that, of course, but his threats are often met with shivering compliance.

But Rupp took this to a whole new level when he filed a trademark suit in 2018 against the Louisville Courier-Journal, a newspaper, for both posting its own Derby Pie recipe and for mentioning that other bakeries had derby pie products. The court promptly dismissed the lawsuit.

U.S. District Judge Rebecca Jennings, an appointee of President Donald Trump, dismissed Rupp’s complaint in March and ruled the newspaper had used the term in a “non-trademark” fashion.

Jennings called Rupp’s complaint “skeletal,” finding he failed to establish a plausible claim that a consumer would think the newspaper asserted ownership of the mark or itself was a manufacturer of Derby Pie.

In other words, there was no chance for customer confusion because, well, The LCJ is a damned newspaper. As to mentioning that other bakeries had products that existed, the LCJ reporting on that factual occurrence had nothing to do with trademark law and is protected First Amendment speech.

But rather than admitting how absurd this all was and slinking away, Rupp instead appealed the ruling. At this point, Rupp's legal team is asserting that dismissal at the pleading stage was incorrect, as courts are supposed to give deference to plaintiffs at that stage. Which is true, except in cases when the case has little to no chance of succeeding, which is certainly the case here. The LCJ itself responded, pointing out that First Amendment is a thing.

Attorney Michael Abate argued on behalf of the Courier-Journal and told the panel there is “no conceivable basis” for a trademark infringement claim, but also pointed out the newspaper’s speech is protected under the First Amendment.

“We’re talking about news stories that are plainly protected under the First Amendment.

Add to that the non-commercial nature of the article's recipe (the newspaper isn't selling pies or the recipe itself), the lack of monetary harm to Rupp, and the fact that these attacks are on news coverage and you have a, ahem, recipe for a failed lawsuit. Rupp possibly should be going after other bakeries using his trademark, but not a newspaper.

A panel of judges is currently reviewing all of this, but one expects this appeal will be tossed as quickly as the original lawsuit.

and they're off!
Mon, 14 Dec 2020 13:39:43 PST Two Studies Show Giving Military Gear To Cops Doesn't Result In Lower Crime Rates Tim Cushing One of President Trump's main goals while in office was to roll back anything his predecessor had put in place. One of his earliest executive orders removed the (minimal) restrictions Barack Obama had placed on the Defense Department's 1033 program. This program allowed local law enforcement agencies to acquire military gear at almost zero cost -- something that had been used and abused for years until the sight of an armored vehicle rolling up on protesters in Ferguson, Missouri proved to be a bit too much for Americans and their Congressional representatives.

Trump's reopening of the 1033 program was based on a couple of factors: his all-encompassing love of all things law enforcement and some dubious research that claimed giving cops access to war gear actually reduced crime.

That was the point made by then-Attorney General Jeff Sessions ahead of the rollback.

President Trump is serious about this mission. He is doing all he can to restore law and order and support our police across America. And that is why, today, I am here to announce that President Trump is issuing an executive order that will make it easier to protect yourselves and your communities. He is rescinding restrictions from the prior administration that limited your agencies' ability to get equipment through federal programs, including life saving gear like Kevlar vests and helmets and first responder and rescue equipment like what they’re using in Texas right now.


Those restrictions went too far. We will not put superficial concerns above public safety.

Those "superficial concerns" included genuine concerns that deploying war gear against US citizens tends to make officers think they're soldiers in a war zone, rather than public servants who need a solid relationship with those they serve to make meaningful changes that reduce crime and increase public safety.

The push for more distribution of military gear was backed by a study by the American Economic Association, which claimed law enforcement agencies that utilized the 1033 program were more effective at lowering crime rates. That data has now been examined by two other sets of researchers, and the conclusions they've reached contradict the AEA's findings.

When Emory scholars read the studies, they noticed statistical flaws in the analysis. They set out to rigorously test those two previous studies’ claims by replicating them. They utilized the same 2014 NPR data and applied the studies’ same methods of analysis.

What immediately got the attention of the Emory scholars was that the studies were doing analysis at the county level, not the municipal level (i.e., the individual jurisdictions of cities). So, there wasn’t a way to directly compare which local agencies received SME and their specific crime rates. That’s because the federal government only reported the 1033 Program data at the county level.

Fortunately, there was more data available now to double-check the claims made by these earlier studies. Obama's 1033 program reforms mandated more reporting on acquisition, which gave these researchers more to work with. The granular detail missing from the first studies was included in the second examination.

It was only after Emory used the new, agency-level data in analysis that they determined the SME didn’t reduce crime.

“It crystalizes so many of the concerns and claims both pro and con about policing in the U.S. It raises the matter of funding the police and how do we provide resources to the police — through money or giving them equipment. It raises the matter of police militarization — that the police look and act like they are soldiers at war against citizens,” [Associate Professor Michael] Owens says. “And it raises questions about efficiency — costs and benefits."

It's not just Emory researchers arriving at this conclusion. A simultaneously-released study by the University of Michigan professor Kenneth Lowande says the same thing:

I use 3.8 million archived inventory records to estimate the magnitude of sources of bias in existing studies of the 1033 Program. I show that most variation in militarization comes from previously unobserved sources, which implies that studies that show crime-reduction benefits are unreliable. I then leverage recent policy changes to evaluate the effect of military equipment: the Obama Administration recalled property under Executive Order 13688, which resulted in a forced demilitarization of several hundred departments. Difference-in-difference estimates of agencies that retained similar equipment show negligible or undetectable impacts on violent crime or officer safety.

Of course, these studies have drawn some criticism. Law enforcement officials -- who've performed no research of their own -- dispute these findings.

"This is just a symptom of the larger defund the police movement and this has turned political," retired police Sgt. Betsy Brantner Smith, a spokesperson for the nonprofit National Police Association, which educates the public on policing in America, told ABC News. "Obama took it away, Trump gave it back, and now we’ll probably see Biden take it away again so that they can say, ‘I took this away from the big bad police.'"

Wow. What a thoughtful counterpoint. On one hand, we have data showing handing cops military hand-me-downs doesn't reduce crime. On the other hand, we have a police union rep claiming math is politicized. At least the other police union rep quoted in piece makes a better point while still disputing the findings.

Patrick Yoes, national president of the Fraternal Order of Police, the world's largest organization of sworn law enforcement officers, also slammed the two studies as "convoluted logic."

"It has never been the contention of the FOP that surplus military equipment prevents crime, but rather that such equipment plays a critical role in protecting police officers and citizens in life-threatening situations such as active shooters at large, civil disturbances, and natural disasters."

But do cops really need war gear to make them safer? Crime rates in most of the country are still at historic lows. Officer safety remains at an all-time high. This last decade has been the safest time in history to be a cop and yet complaints like these are always offered up anytime someone points out the flaws in their logic.

So, military gear given to cops doesn't reduce crime. And it likely doesn't make officers much safer than they are already. What it does do is cultivate a warrior mindset that harms law enforcement's relationship with the public. And maybe that's all law enforcement really wants: more distance between them and those they've declared war on.

law enforcement: we would like to continue to define insanity tyvm
Mon, 14 Dec 2020 12:00:00 PST The Cost Of Broadband Is Too Damned High Joshua Stager How much do consumers pay for internet service in the United States? The question might seem relatively simple, but the answer has stymied the federal government for years—because no agency collects this data. Throughout 2020, my organization, New America’s Open Technology Institute, published the Cost of Connectivity series to crack open the black box of internet pricing. The collective takeaway of these studies is clear: the cost of internet service is alarmingly high, and there is substantial evidence of an affordability crisis in the United States.

Our research found that U.S. consumers pay some of the highest broadband prices in the world, at an average $68.38 per month. Most of these plans advertise a temporary promotional rate, after which the monthly cost jumps an additional $22.25, on average. Of the 760 plans we surveyed across Europe, Asia, and North America, U.S. plans are the most expensive. Prices are particularly high in rural and Tribal communities. Unfortunately, these higher prices don’t appear to give U.S. consumers faster speeds than consumers abroad.

Moreover, we found that internet pricing typically includes a byzantine maze of ancillary fees and hidden costs. The fees for equipment rentals, data overages, and contract terminations can be substantial. For example, modem rental fees can add an additional 75 percent to the total cost of monthly internet service in the United States, compared to just 30 percent abroad. Consumers struggle to navigate this maze and determine their total cost of service.

But it’s not all bad news: we found evidence of cheaper, faster service in a handful of U.S. cities that offer municipal networks. The most affordable U.S. city in our survey is Ammon, Idaho, a city with a locally-owned open access network. Ammon offers dozens of inexpensive, high-speed plans, including several for less than $10 per month. What’s more, if consumers find a better deal, they can switch providers within seconds using the city’s website—no equipment changes or lengthy customer service appointments required.

Unfortunately, this kind of affordable, customer-friendly internet service is rare in the United States. The reasons for this dynamic are multifaceted, including a lack of competition, a lack of transparency, and years of policy failures at all levels of government. Today, U.S. internet service is dominated by just four companies—Comcast, AT&T, Verizon, and Charter—and they’ve carved up the market so that most Americans have, at best, one or two providers serving their home. This lack of choice negatively affects the quality and cost of internet service.

Broadband has become even more unaffordable during the COVID-19 pandemic, as millions of people struggle to pay for basic necessities amid widespread job and income losses. It’s clear that the federal government needs to take action to make internet service more affordable, both during the pandemic and beyond. There are many steps that Congress and the Federal Communications Commission should take, including, but not limited to:

  • Expand Lifeline. The FCC’s Lifeline program provides a $9.25 monthly subsidy for qualifying low-income households to pay for phone or internet service. It’s not enough. Lifeline is the only federal program that directly addresses broadband affordability, and it needs to expand. Earlier this year, the House of Representatives passed two bills that would create a $50 monthly internet subsidy for low-income households, students, and the newly unemployed. The Senate should pass these bills.

  • Legalize municipal broadband. Locally-owned networks save consumers money, yet many states prohibit or restrict their development. AT&T and other large telcos lobbied for these restrictions because they fear competition. Congress should repeal these state laws so every community can invest in affordable internet infrastructure.

  • Ban landlord exclusivity deals. Internet providers often broker sweetheart deals with landlords to ensure that tenants are locked into their service, producing hyperlocal monopolies that deprive tenants of choice and cheaper alternatives. The FCC tried to outlaw these exclusivity deals a decade ago, but the companies found loopholes. The FCC should close these loopholes and ban exclusivity deals once and for all.

  • Step up antitrust enforcement. Competition leads to lower prices, but the U.S. broadband market is an oligopoly. The FCC, the Federal Trade Commission, and the Department of Justice should use their legal authorities to investigate the broadband market, block anticompetitive conduct, and break up any providers that have become too big. And Congress should allocate more resources to these agencies for this task.

  • Make internet pricing transparent. The federal government needs to finally start collecting data on the cost of internet service. There is no reason for this information to be in a black box, hidden from consumers and policymakers. The FCC should require internet providers to disclose pricing data in a simplified “broadband nutrition label” that helps consumers comparison-shop, avoid hidden fees, and know what they are paying for.

Ultimately, many of these actions could be accomplished if the Senate simply passed H.R. 2 or if the FCC used its existing authority. The high cost of internet service should be an urgent priority for all policymakers, particularly during a pandemic that has made the internet an essential part of daily life. The broadband affordability crisis will not solve itself.

Joshua Stager is the senior counsel for New America’s Open Technology Institute.

Mon, 14 Dec 2020 10:44:00 PST District Court Rejects CDT's Challenge Of Trump's Ridiculous Executive Order On Section 230 Mike Masnick Back in May, you may recall, Donald Trump issued his silly executive order on Section 230 in response to Twitter adding a couple fact checks to blatant conspiracy theory nonsense that Trump was posting. A week later, the Center for Democracy and Technology (CDT) sued over the executive order, arguing that it was unconstitutional, and clearly retaliatory against Twitter.

When CDT filed the lawsuit I noted that the big question would be whether or not CDT could show standing in order to challenge the order, as it would be harder to prove that it impacted CDT directly. CDT argued that because the executive order would divert its attention and resources away from other, more important, fights regarding free speech online and government surveillance, it injured the organization.

On Friday, a judge agreed with my initial gut reaction and said that CDT failed to show standing. Basically, since the order only directed the government to do a bunch of stupid things, it didn't really impact CDT.

But Order 13,925 is most notable at this point for what it does not do. It imposes no obligation on CDT (or any other private party), but it merely directs government officials to take preliminary steps towards possible lawmaking. CDT’s claimed injury is not concrete or imminent and is thus insufficient to establish Article III standing. Even if CDT managed to clear the standing hurdle, it faces redressability and ripeness problems too. The Court will therefore dismiss this case for lack of jurisdiction.

The claim that this silly waste of time diverted resources from more serious issues doesn't impress the court:

If an organization alleges “only impairment of its advocacy,” that “will not suffice” to show standing. Turlock, 786 F.3d at 24; see also Food & Water Watch, 808 F.3d at 919 (“Our precedent makes clear that an organization’s use of resources for litigation, investigation in anticipation of litigation, or advocacy is not sufficient to give rise to an Article III injury.”). “This is true whether the advocacy takes place through litigation or administrative proceedings.” Turlock, 786 F.3d at 24. More, “an organization does not suffer an injury in fact where it expends resources to educate its members and others unless doing so subjects the organization to operational costs beyond those normally expended.” Food & Water Watch, 808 F.3d at 920 (cleaned up).

Though somewhat ridiculously the judge, Trevor McFadden (appointed by Donald Trump), actually throws in an incredibly silly line, claiming that CDT should be applauding Donald Trump's executive order, which he suggests (laughably) is about protecting free speech online.

CDT has not met its burden to show an injury to its interests. To begin, there does not appear to be a “direct conflict” between Order 13,925 and CDT’s stated mission. The Order expresses “the policy of the United States to foster clear ground rules promoting free and open debate on the internet.” ... CDT asserts a similar mission—to “advocat[e] in favor of First Amendment protection for speech on the Internet.” ... One would think that CDT would applaud the President’s desire to prevent online censorship. But no matter. The Court will take CDT at its word and assume that Order 13,925 directly conflicts with its interests. ... It still has not established an Article III injury.

That seems quite silly. Just because Trump's exec order claimed to be promoting free and open debate on the internet, the whole point was to move to stifle speech online, and that's what CDT was pointing out. Still, the standing point is a big one and CDT can't jump over that hurdle:

CDT has not alleged that Order 13,925 has “perceptibly impaired” its “ability to provide services.” Turlock, 786 F.3d at 24 (cleaned up). It claims that because of the Order it will have to “devote substantial resources to”: “participating in the planned FCC rulemaking proceeding,” “monitoring federal agencies’ reports,” “tracking any FTC action,” “participating in any proceedings that the Commission institutes,” and “engaging with federal and state policymakers.”...

This is plainly deficient. Circuit precedent is “clear that an organization’s use of resources for . . . advocacy is not sufficient to give rise to an Article III injury,” Food & Water Watch, 808 F.3d at 919, “whether the advocacy takes place through litigation or administrative proceedings,” Turlock, 786 F.3d at 24. CDT’s alleged injury—resources spent monitoring federal agencies, participating in their proceedings, and working with lawmakers—is one to its advocacy work, which is not a cognizable injury. ... In other words, CDT has shown that it is engaging in business as usual, not that Order 13,925 “causes an inhibition of [its] daily operations.” ...

All in all this is disappointing, but not unexpected. In the meantime, the executive order has already created its own mess in the form of the NTIA petition to the FCC to reinterpret Section 230, which the FCC, led by total hypocrite Ajit Pai, has agreed to move forward with.

CDT may not have had standing to challenge the bogus order, but the order has still created a huge mess for the open internet. It was the kind of mess that principled people could have stopped much earlier, but they all went along with it, either because they're too clueless to understand Section 230 or they're too afraid of Donald Trump pointing his angry temper tantrums in their direction. One hopes that the issue will die with the new administration, but with recent moves like appointing the author of the NTIA petition to the FCC, and some other rumors -- combined with Biden's top tech advisor pushing to ditch 230 entirely -- the trail of destruction this executive order is causing isn't likely to end any time soon.

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Mon, 14 Dec 2020 09:31:26 PST USA Today Publishes Yet Another Bogus OpEd Against 230, Completely Misrepresents The Law Mike Masnick Another day, another op-ed that totally misrepresents Section 230. This one comes from USA Today, and is written by faux-conservative Rachel Bovard, who is doing this on purpose. Sometimes we see op-eds where it's clear the author is unfamiliar with how Section 230 works. Other times they are deliberately misrepresenting it. Bovard is in the latter category. She works for an organization, with dark money funding, that pretends to be for "transparency" about the tech industry -- which is hilarious since that organization's own funding is kept secret. The only known funding for that organization comes from Oracle, a company that has made it clear it wants to do away with Section 230 (despite the fact that it wants people to use its cloud services). Bovard has had many, many experts in Section 230 explain to her why she's misrepresenting the law. And she has never once changed her arguments, nor admitted to being wrong. She just keeps repeating the bullshit.

I get it. That's her job. Everybody's gotta make a buck, and apparently this is the best she can do. However, why is USA Today sullying its own reputation by allowing her to misrepresent the law on its pages? Let's go through some of the misrepresentations.

Though Section 230 protects more than just Google, Facebook, and Twitter, the giant tech platforms have benefited substantially from the privilege — so much that Section 230 can be characterized as a giant government subsidy to the world’s biggest companies.

At least she admits that it protects more than just "big tech" (in the past she has pretended otherwise), but it's still wrong to say that only those companies have benefited, or that it "can be characterized as a giant government subsidy to the world’s biggest companies." Nothing could be further from the truth, on multiple levels. The big companies could deal with the legal liability of not having 230. This is why Facebook has been fine with undermining it over the past few years. The senior management team there long ago made the calculation that they'd come out of it fine. Their competitors would be harmed.

It's everyone else -- including you and me -- who cannot handle a world without 230. Indeed, empirical research has shown that 230 increases competition in internet companies by encouraging investment to go up against the internet giants.

But, more importantly, Section 230 has never been about "protecting" the big companies -- it has always been about enabling you and me to speak. Without Section 230 few websites would willingly host just anyone's speech. Section 230 opened up the possibility for more people to be able to communicate and speak online. And it protects all of us as well. People like Rachel like to forget that the key part of 230 says:

No provider or user of an interactive computer service shall be treated as the publisher or speaker...

That's what protects you and me when we retweet someone. Or when we forward an email. To say that it disproportionately benefits large companies is simply wrong.

But it's even worse to say that it's a "subsidy." How is it possibly a subsidy, other than if you declare it a subsidy not to have to waste time fighting off mistargeted, vexatious lawsuits? You know, the kind of vexatious lawsuits that "conservatives" like Rachel Bovard used to pretend they were against, but are now for when they're against companies she dislikes. The entire setup of Section 230 is simple: lawsuits should be targeted at those who actually violate the law. It's a tool for avoiding frivolous lawsuits. That's not a "subsidy."

But the article gets worse:

It wasn’t always viewed this way. The law was enacted nearly 25 years ago as something akin to an exchange: Internet platforms would receive a liability shield so they could voluntarily screen out harmful content accessible to children, and in return they would provide a forum for “true diversity of political discourse” and “myriad avenues for intellectual activity.”

This is also a misrepresentation. A big one too. This is one that a lot of people focus in on, and if you're unaware of the history here, I can see how you might get this wrong. Rachel knows the history, so she's using this line to blatantly misrepresent reality. There was no exchange. It wasn't "you get this protection if you create a true diversity of political discourse." Indeed, the authors of the law have directly debunked this point. So I'm not sure why Bovard would repeat it other than that she assumes the readers of her op-ed can be easily misled.

As the authors of 230, Ron Wyden and Chris Cox, have explained, the purpose of properly applying liability to those doing the law violating was not to create platforms that themselves enabled a wide diversity of voices, but to enable every platform to moderate as they see fit so that each platform could use their own favored approach. The "diversity" would be in the different kinds of platforms that were enabled by it. Here's what Cox & Wyden said just recently in their FCC filing:

In our view as the law’s authors, this requires that government allow a thousand flowers to bloom—not that a single website has to represent every conceivable point of view. The reason that Section 230 does not require political neutrality, and was never intended to do so, is that it would enforce homogeneity: every website would have the same “neutral” point of view. This is the opposite of true diversity.

For example, 230 has enabled things like Parler to take a different approach to content moderation than Twitter. That's the diversity they were looking for -- not that Twitter (or Parler) have to host all voices. You'd think that Rachel would know this, seeing as she herself is active on Parler. Parler, for what it's worth, supports Section 230, knowing that it couldn't exist without it.

But, having established the false premise that 230 was a trade-off for "diverse" platforms, Bovard then argues that the big websites engage in discrimination (which they do not):

Critically, in protecting these companies from costly damages in lawsuits, Section 230 has also fueled the growth of the Big Tech platforms which now engage in viewpoint discrimination at an unprecedented scale and scope; international mega-corporations determining what news, information and perspectives Americans are allowed to read, hear and access.

Again, there remains no evidence to support this contention, but even if it was true, so what? Parler's own CEO gleefully shared with a reporter how he was sitting around banning "leftist" trolls who showed up on Parler. This is what Section 230 allows. It allows a website to moderate how they see fit, so that it can ban trolls of any political persuasion. Sites like that need to ban trolls because otherwise the experience sucks. But under Rachel's own (false) argument for how 230 is supposed to work, Parler wouldn't be allowed to ban leftist trolls either.

And, similarly, Facebook would no longer be able to give Trump fans more leeway to post disinformation. Or is that not the "viewpoint discrimination" Bovard is actually concerned about?

A handful of Big Tech companies are now controlling the flow of most information in a free society, and they are doing so aided and abetted by government policy. That these are merely private companies exercising their First Amendment rights is a reductive framing which ignores that they do so in a manner that is privileged — they are immune to liabilities to which other First Amendment actors like newspapers are subject — and also that these content moderation decisions occur at an extraordinary and unparalleled scale.

Nearly everything here is wrong as well. They are not "controlling the flow of information" any more than Fox News or OANN is. Is Rachel saying that Fox News and OANN are "controlling the flow of information"? People go to them for information. And people have lots of choices for where they get their information. None of that has anything to do with Section 230.

More importantly, they are not immune to liabilities that others like newspapers are subject to. First off, most newspaper content is consumed online these days, meaning that they have the exact same liability protections under 230 as any other website does. Second, Google, Twitter, and Facebook (just like newspapers) still retain liability for content they themselves create. Again, this is the same across the board. It's misleading to pretend that there's a real difference.

When Google decides to suppress or amplify content, it does so for 90% of the global marketplace. Twitter’s choices to cut off circulation of certain content — as they did when they banned circulation of a story critical of the Biden family, a month before the November election — very much shapes the national news narrative. Facebook, by its own admission, has the power to swing elections — which is troubling, as some of the platform’s “fact checkers” are partially bankrolled by a Chinese company.

Almost all of this is presented misleadingly. Google search may have 90% market share, but what news does she think it's "suppressing"? And is general search a proxy for news? No, it's not. The Facebook claim about "the power to swing elections" is taking some marketing puffery by their ad sales team out of context, as is the scare quote claim about fact checkers (Facebook partners with a whole bunch of different fact checking organizations, including one with whom Rachel Bovard is a frequent author.

So it would be just as honest to say that Facebook's ability to fact check news is "troubling, as some of the platform's fact checkers are partially run by an organization willing to post blatant misinformation from serial fabulist Rachel Bovard." Can't have one without the other.

And, finally, let's get to the Twitter/Hunter Biden/NY Post story. We've discussed that here in the past, mainly to note that it seemed like a dumb decision, though there were existing policy reasons why it happened. But the most important thing is that it did not "suppress" that story. It did the opposite. The article got way more attention because of the hamfisted moderation issues.

Bovard is selling USA Today readers a load of misinformation. And she knows it.

That policy makers have a role here is obvious. While private companies have the right to set the rules for their own platforms and online communities, they do not have a right to do it with the privilege of Section 230 protections. And the more these companies engage in behavior that ranges away from the original goal of ensuring a “true diversity of political discourse” and toward gatekeeping independent thought in America, the more they prove themselves undeserving of special government treatment.

Again, this completely gets the point of 230 backwards. It was designed to allow platforms to discriminate as they see fit in order to create very differentiated communities.

The question at hand distills to this: Are we to allow the lords of Silicon Valley to determine the terms of free speech, free thought, and free behavior in America? Or will we, a fiercely independent people, speak through our representative self-government to strip them of a congressional privilege they no longer deserve? Trump has opened the door. It is up to Congress to walk through it.

This is just completely misleading. Right before this, she supports Donald Trump's and various Republican elected officials' proposals for gutting Section 230, which would set up the government as internet speech police, determining how social media websites can and cannot moderate their content. That's a true threat to free speech online. Letting private companies moderate as they see fit is not a threat to free speech. At all.

Stripping websites of Section 230 will not give Rachel the world she seeks. It will lock in those large companies, who will retain their 1st Amendment right to not associate with any speech they don't want to associate with. What it will do is shut down many other spaces online -- spaces like Parler, where Bovard and friends like to gather to lie to each other. Removing Section 230 is what would actually do significant harm to the diversity of speech online, by forcing it only onto platforms that can handle the liability.

Rachel Bovard has a job to do: blatantly misrepresent Section 230 to attack Google. I get it. USA Today doesn't need to help.

Mon, 14 Dec 2020 06:24:15 PST Consumer Groups Say The FCC Just Blew $9 Billion To Deliver Broadband To Already Served Rich People Karl Bode The FCC last week held a reverse auction to dole out $9 billion to, purportedly, improve patchy U.S. broadband. But consumer groups say the auction did nothing of the sort, instead delivering $9 billion to a dodgy roster of companies with existing histories of fraud that will be using much of the funds to expand broadband to affluent areas where broadband is often already available.

The reverse auction involved doling out billions from the FCC's Rural Digital Opportunity Fund (RDOF), paid into via Universal Service Fund (USF) contributions affixed to your broadband and phone bills. To be very clear: some of this money will absolutely help shore up access in underserved communities. But after digging into the FCC maps of the winning bidders, consumer groups like Free Press say something ugly is afoot. The group found a long list of examples where companies got millions of dollars to dole out broadband to a handful of wealthy homes in affluent areas, many of which already have service:

There are plenty of examples of this in the data. Like this affluent section of LA:

Or here at LAX, where a company is getting ratepayer money to deploy broadband to a whopping two already-served locations near the airport:

Ajit Pai and friends are, you'll recall, the same folks who like to hyperventilate over community broadband as an inevitable taxpayer boondoggle (it isn't, but that doesn't stop them). There's an absolute ocean of telecom-linked consultants, lobbyists, policy wonks, academics, and think tankers who'll be happy to go on at great lengths about how localized community broadband networks are some kind of socialistic hellscape of taxpayer fraud. But bring up how we throw way, way more money at AT&T in exchange for reduced investments, empty promises, and layoffs and...crickets.

Enter this new auction data, which indicates your money is being thrown at ISPs that already have long histories of dodgy behavior and being misleading about how subsidies are spent. That includes Frontier Communications, which has faced repeated accusations of subsidy fraud in places like West Virginia. And Charter Communications (Spectrum), which almost got kicked out of New York State recently for repeatedly lying to regulators about broadband deployment efforts. These are companies with pretty long histories of extremely dodgy behavior, being given millions to do something they've already failed to do, repeatedly.

Of course there are some new players getting money for dubious reasons too. Like Starlink, which is owned by one of the wealthiest men in the history of the planet, getting a billion dollars so it can deploy broadband to, according to the FCC's own logic and data, parking lots near the Pentagon:

Why does one of the wealthiest men in America need ratepayer subsidization to deploy broadband to areas his project was already targeted to serve? Good question! The company wouldn't respond to reporter inquiries asking why the money was needed or what it plans to do with it, which is always a good sign.

There's a good early breakdown of the results and how this auction was supposed to work by Christopher Mitchell at the Institute for Local Self Reliance. Telecom consultant Doug Dawson also does a good job breaking down what went wrong, noting that because the FCC let fixed wireless providers pretend fixed wireless is the equivalent of fiber (it's most certainly not), a lot of genuine fiber expansion efforts got the short end of the stick:

"By allowing WISPS to claim gigabit capabilities, the FCC cheated huge numbers of people out of getting fiber. There were numerous electric cooperatives, small telcos, CLECs, fiber overbuilders, and public/private partnerships in the auction hoping to bring fiber to entire rural counties. In looking at the footprints won due to this fiction, I’m guessing the FCC’s decision to allow fixed wireless to falsely bid as gigabit technology killed fiber construction to at least a few hundred rural counties."

I don’t understand why the FCC couldn’t get this right. The FCC could have talked to any one of a hundred telecom engineers I know who would have laughed at the idea that fixed wireless can deliver gigabit speeds across big tracts of extremely rural America. A huge portion of this auction was based upon this lie, and that never bodes well for the long run.

There's this thing deregulatory telecom zealots do where they overhype emerging telecom tech, pretending it's some kind of deus ex machina that will magically fix everything. This lets them pretend that magic new tech will bring competition to market, thereby justifying mindless deregulation and napping regulators. Ex-FCC boss turned top cable lobbyist Mike Powell did this with broadband over powerline (BPL), which wound up being an interference-prone dud. You're seeing it happen again with 5G, despite U.S. 5G being too patchy, underwhelming, and expensive to fix America's affordable broadband problem.

This is all pretty well in line for an Ajit Pai FCC that talks endlessly about its "dedication for the digital divide," but has such little respect for accurate data it can't actually tell you where broadband is or isn't available (but pretends to). And because folks like Pai are so ideologically rigid, they can't even acknowledge that the biggest problem in U.S. broadband is monopolistic domination by a handful of giants resulting in massive swaths of the country where competition is virtually nonexistent. As such it's not surprising the end policies are often fluff and nonsense untethered from the reality on the ground.

A serious, functioning FCC would make accurate data the priority. It would then focus on the best, smartest, and most creative ways to drive new technology and competition to those markets, whether you ideologically agree with the solution or not. Instead, we have an FCC that literally pretends America's broadband competition problems don't exist, misidentifies the real problem out of ideological and partisan hubris, then applies solutions that largely involve throwing billions at companies with a twenty year track record of taking subsidies in exchange for empty promises.

Sun, 13 Dec 2020 12:00:00 PST Funniest/Most Insightful Comments Of The Week At Techdirt Leigh Beadon This week, our first place winner on the insightful side is an anonymous comment on our post about Florida State Police raiding the home of COVID whistleblower Rebekah Jones:

Huh. Interesting that this comes right after a major Florida newspaper published a scathing report, using numerous insider sources, on how Desantis covered up a lot of COVID information. yjmgkos6bd7vo7vnripqliany-htmlstory.html

I wonder if this is him trying to track down who talked to the paper.

In second place, it's another comment on that post, this time from our own Karl Bode adding an important point to a thread of pushback against an idiot downplaying the virus based on its mortality rate:

also, for whatever reason, people really like to fixate exclusively on deaths, and ignore the fact that this disease is going to cause disability (perhaps permanent) for millions of people.

For editor's choice on the insightful side, we've got a pair of responses to the dangerous ideas about Section 230 reform being touted by Joe Biden's top tech advisor. First, it's That One Guy aptly summing up one way to spot a bad argument about 230:

... we'll just leave that part out

The best part of using Facebook of all platforms as the Big Bad here is that Facebook is on their side. Facebook has made clear that it's fine with gutting 230 because it understands that unlike the vast majority of other sites that allow user submitted content it will be able to survive that.

Bringing up Cox and Wyden adds an extra dash of 'I really hope no-one fact-checks us on this' as well, since unlike what that cherry-picked quote would seem to suggest they have made clear that 230 is working as intended.

I get at this point that anyone attacking 230 has to lie to make their arguments, since there's no honest arguments to be made, but even knowing that this argument is laughably bad and banking really hard on ignorance and emotional manipulation, which tells you all you need to know about the one making it, none of it good.

Next, it's Blake C. Stacey coining a slogan for the damage bad Section 230 reform would do:

Free slogan: "You say you want to kill Facebook, but you're going to miss and kill Wikipedia."

Over on the funny side, our first place winner is again an anonymous comment, this time on our post about Trump promising to pull military funding over the lack of a Section 230 repeal:

PETA has really dropped the ball. Please, for the love of what little sanity remains in this country, spay and neuter your Republicans!

In second place, it's You're a Gazelle! responding to the Supreme Court allowing Muslims to sue the FBI for placing them on the no-fly list when they refused to become informants:

Could Be a Slippery Slope

If this continues blackmail might become illegal!

For editor's choice on the funny side, we start out with an anonymous commenter offering up another all-purpose response to many people who insist they are being censored:

I love seeing posts stating "this post is being blocked!"

Finally, it's one more anonymous commenter, responding to our case study about the time Facebook blocked a photo of some onions for nudity (with a typo corrected):

Well, there is a lot of skin to skin contact in the photo.

That's all for this week, folks!

Sat, 12 Dec 2020 12:05:00 PST This Week In Techdirt History: December 6th - 12th Leigh Beadon Five Years Ago

This week in 2015, the confluence of the Paris attack, the San Bernardino attack, and the rise of ISIS created a perfect storm for the anti-encryption, pro-surveillance crowd. President Obama was hinting at asking Silicon Valley to magically block terrorists from using tech products, while Hillary Clinton was doubling down on her attacks on the tech industry and mocking free speech online in the exact same way Donald Trump was — while Mitch McConnell was promising to offer up whatever bill the president wanted to ban encryption, Dianne Feinstein was bringing back a bill that would force internet providers to report on "suspicious" behavior by customers and teaming up with James Comey to mislead people about encryption, and Michael McCaul was proposing a commission to "force" encryption backdoors. Even a former FCC commissioner was getting in the game, idiotically claiming that net neutrality helps ISIS. In France, law enforcement released a "wish list" of draconian measures including banning open WiFi, which got at least a tiny bit of pushback from the Prime Minister — while Spain brought in a new law allowing widespread surveillance, and Kazakhstan was breaking the internet with an all-out war on encryption.

Ten Years Ago

Today there's a lot of controversy around Visa and MasterCard blocking Pornhub, but this same week in 2010 the exact same conversation was going on around Wikileaks. The week kicked off with PayPal cutting off payments, a Swiss bank found a technicality that allowed it to freeze the site's bank account, then Mastercard blocked any payment systems that work with Wikileaks, and were soon joined by Visa (I wonder if that had anything to do with its most recent leak). But attempts to kill Wikileaks were just contributing to its spread, and the government was contradicting itself in its panicked attempts to internally block the site, or just doing really dumb things like blocking any site with Wikileaks in the title, and making extremely silly requests like the State Department asking Wikileaks to "return" the leaked cables (ironically around the same time it was hosting World Press Freedom Day).

Fifteen Years Ago

This week in 2005, big telcos were doing their usual thing and freaking out about competition, even going so far as to punish New Orleans for offering free wifi in the wake of Hurricane Katrina, or just completely contradicting themselves on fiber optic broadband, which they hate when municipalities try to offer it but which they are happy to sell themselves. Sony's DRM woes were far from over, with yet another security vulnerability found in one of their products, as well as a vulnerability in the patch the company issued to fix it. The recording industry was showing it would never be happy no matter what Kazaa did, and really going hard on its new obsession — unauthorized song lyrics — by attacking an app that displays them and even calling for people who host them to be thrown in jail.

Fri, 11 Dec 2020 19:39:00 PST Cyberpunk 2077's Stream-Safe Setting Option For Its Music Failed To Keep Streamers Safe Timothy Geigner In November, as we were finally coming to the day when CD Projekt Red's newest opus, Cyberpunk 2077, was going to be released to the world, we wrote about how the developer had included a setting for the game specifically to keep streamers safe from copyright strikes. Essentially, the setting was meant to strip out all licensed music from the game and replace it with music that wouldn't land streamers in copyright jail while doing let's-plays. On the one hand, it was nice to see a developer so in favor of having its games streamed do this sort of thing. On the other hand, the fact that CD Projekt Red had to do so showed both what a failure Amazon/Twitch and the like have been at supporting their streamers through music licensing deals and, more importantly, what a hellscape copyright enforcement has become that all of this was even necessary.

Well, as it turns out, that hellscape is so complete that even the game's stream-safe setting failed to keep streamers safe.

The developer first warned potential streamers on Wednesday, before Cyberpunk 2077 officially launched in all regions, that a certain song (CDPR didn’t say which one) during the game’s “Braindance” sequences might trigger a Digital Millennium Copyright Act strike. That’s even if you’re using the specific in-game setting designed to toggle off copyrighted music for this exact reason.

But now CDPR says that the issue may be larger than it first realized, and it’s now advising streamers turn off in-game music entirely due to “additional instances in the game which might put a DMCA strike on your channel.” CDPR says a fix is on the way, but it’s not an ideal situation to have to disable all music (both copyrighted and original tracks) when streaming the game just to avoid tripping the automated detection systems that protect copyrighted works.

This is all immensely stupid. I'm sure some out there will want to blame the developer for this, with suggestions that it didn't roll out its stream-safe music setting well enough. But that's dumb. CD Projekt Red is trying to navigate this idiotic minefield, but because of the failings of streaming platforms combined with the absurdly strict culture of the music industry, it's very, very difficult to pull off.

Wouldn't it be easier if we all just admitted that hearing music, licensed or otherwise, playing in the soundtrack of a game being streamed isn't a damned threat or replacement for the actual original music? Nobody was going to out to buy "Track X" from iTunes only to hear it on a let's-play and decide instead not to. That isn't a thing.

Instead, we have this absurd reality to deal with.

Fri, 11 Dec 2020 15:31:00 PST Content Moderation Case Study: Facebook's AI Continues To Struggle With Identifying Nudity (2020) Copia Institute Summary: Since its inception, Facebook has attempted to be more "family-friendly" than other social media services. Its hardline stance on nudity, however, has often proved problematic, as its AI (and its human moderators) have flagged accounts for harmless images and/or failed to consider context when removing images or locking accounts.

The latest example of Facebook's AI failing to properly moderate nudity involves garden vegetables. A seed business in Newfoundland, Canada was notified its image of onions had been removed for violating the terms of service. Its picture of onions apparently set off the auto-moderation, which flagged the image for containing "products with overtly sexual positioning." A follow-up message noted the picture of a handful of onions in a wicker basket was "sexually suggestive."

Facebook's nudity policy has been inconsistent since its inception. Male breasts are treated differently than female breasts, resulting in some questionable decisions by the platform. Its policy has also caused problems for definitively non-sexual content, like photos and other content posted by breastfeeding groups and breast cancer awareness videos. In this case, the round shape and flesh tones of the onions appear to have tricked the AI into thinking garden vegetables were overtly sexual content, showing the AI still has a lot to learn about human anatomy and sexual positioning.

Decisions to be made by Facebook:

  • Should more automated nudity/sexual content decisions be backstopped by human moderators?
  • Is the possibility of over-blocking worth the reduction in labor costs?
  • Is over-blocking preferable to under-blocking when it comes to moderating content?
  • Is Facebook large enough to comfortably absorb any damage to its reputation or user goodwill when its moderation decisions affect content that doesn't actually violate its policies?
  • Is it even possible for a platform of Facebook's size to accurately moderate content and/or provide better options for challenging content removals?
Questions and policy implications to consider:
  • Is the handling of nudity in accordance with the United States' more historically Puritianical views really the best way to moderate content submitted by users all over the world?
  • Would it be more useful to users is content were hidden -- but not deleted -- when it appears to violate Facebook's terms of service, allowing posters and readers to access the content if they choose to after being notified of its potential violation?
  • Would a more transparent appeals process allow for quicker reversals of incorrect moderation decisions?
Resolution: The seed company's ad was reinstated shortly after Facebook moderators were informed of the mistake. A statement from the company raised at least one more question as its spokesperson did not clarify exactly what the AI thought the onions actually were, leaving users to speculate what the spokesperson meant, as well as how the AI would react to future posts it mistook for, "well, you know."

"We use automated technology to keep nudity off our apps," wrote Meg Sinclair, Facebook Canada's head of communications. "But sometimes it doesn't know a walla walla onion from a, well, you know. We restored the ad and are sorry for the business' trouble."

Originally posted at the Trust & Safety Foundation website.

Fri, 11 Dec 2020 13:38:22 PST Apple, Cloudflare Join Forces To Encrypt DNS Karl Bode Each time you visit a website, your browser interacts with a domain name system (DNS) resolver that converts web addresses to an IP address understood by the machines along your path. Historically however this traffic exchange isn't encrypted, making it possible for your broadband provider or another third party to monitor your browsing data based on your DNS queries. DNS inventors in the 80s didn't really bet on a future where all DNS queries would be tracked, monetized, or weaponized by third parties.

Experts for a while have been arguing (including here at the Techdirt Greenhouse policy project) that it's important that we start encrypting these pathways to bring a little more security and privacy to the equation. Companies like Mozilla have been at the forefront of implementing "DNS over HTTPS," a significant security upgrade to DNS that encrypts and obscures your domain requests, making it more difficult (though not impossible) to see which websites a user is visiting. Recently, even Comcast (a company that's no stranger to monetizing your online habits) joined Mozilla's efforts to take the idea mainstream.

But even DNS over HTTPS (DoH) doesn't fully thwart DNS resolvers from seeing your browsing activity. Enter a new joint effort from Cloudflare and Apple, who say they have joined forces to back a new internet protocol dubbed ODOH, based in turn on existing research out of Princeton (pdf). Cloudflare explains how it works this way:

"ODoH is an emerging protocol being developed at the IETF. ODoH works by adding a layer of public key encryption, as well as a network proxy between clients and DoH servers such as The combination of these two added elements guarantees that only the user has access to both the DNS messages and their own IP address at the same time."

The changes shouldn't add any perceptible latency to browsing speed, but should notably improve user and overall internet security. A good thing in a country that still doesn't seem to think even a modern, simply privacy law for the internet era is necessary to protect the security of the internet and public safety. But as Zack Whitacre at TechCrunch notes, steps still need to be taken to ensure no single party controls both the DNS resolver and proxy:

"A key component of ODoH working properly is ensuring that the proxy and the DNS resolver never “collude,” in that the two are never controlled by the same entity, otherwise the “separation of knowledge is broken,” Sullivan said. That means having to rely on companies offering to run proxies."

Cloudflare told TechCrunch that several partner organizations are already running proxies, allowing for folks to give the system an early spin if they use Cloudflare's security-focused DNS resolver. Everybody else will need to wait until the new protocol comes standard as part of your OS or browser, which depends on how long it takes for the Internet Engineering Task Force to finalize the proposal. That could take months or years, but in a world where your every waking online movement is increasingly tracked and monetized, it should be a welcome shift whenever it finally drops.

long overdue
Fri, 11 Dec 2020 12:00:00 PST Can Broadband Policy Help Create A More Equitable And inclusive Economy And Society Instead Of The Reverse? Blair Levin 25 years ago, then NTIA Administrator Larry Irving warned that the rising importance of the internet had the downside of creating what he coined a “digital divide."

15 years later, the National Broadband Plan reported that as “more aspects of daily life move online and offline alternatives disappear, the range of choices available to people without broadband narrows. Digital exclusion compounds inequities for historically marginalized groups.” In light of these trends, the plan warned “the cost of digital exclusion is large and growing.”

Judging by the limited government response to those described dangers, both warnings arguably were ahead of their times. In those eras, many viewed internet access as a luxury and saw many other needs as higher priorities for government funds.

That changed this past spring. COVID accelerated the momentum of the economy and society towards "remote everything," revealing that the divide was more costly and urgent than the country had realized. This then launched countless editorials from a wide spectrum of political views, that called for government action to get networks everywhere, get everyone on them, and use them to improve the delivery of essential public goods like education, health care and job training.

That is progress but it is still far from an achievement.

To get networks everywhere, we first need accurate data, something that on a bipartisan basis Congress recognized the FCC has not collected. We also need the FCC to revisit two issues: what now constitutes being unserved, and the minimum standards for any government subsidized deployment. While many have offered their instinctual views on the answers to both, COVID created a real world experiment for high-bandwidth use cases that we should use to illuminate how we answer those questions for a remote everything economy and society.

Once we have a better map and understanding broadband need, Congress should provide funding, at a minimum, to pay for the capital expense of building out networks where no further operating expenses are necessary. Those funds should be allocated in ways that use market forces to assure the public funds are efficiently distributed.

That is not always true today. For example, recently the Department of Agriculture’s Rural Utility Service (RUS) awarded Beehive Telephone Company Inc. a $2.3 million ReConnect grant to deploy a fiber-to-the-premises network to four residents, four farms, and four businesses in Washington County, Utah. It also doled out a $2.7 million grant to deploy a fiber-to-the-premises network to connect 147 people in Elko County, Nevada. These average out to be more than $33,000 per home passed.

That compares rather unfavorably to the FCC’s recent Rural Development Opportunity Fund (RDOF) reverse auction which averaged about $1,770 per home passed. There are concerns about that auction, particularly as other such auctions have experienced a number of defaults owing to technological, economic or competitive factors. Further, the mapping failure likely led to millions spent on unnecessary subsidies. Still, the auction demonstrates that if we had good maps and devoted the appropriate resources, we can finish the job of getting networks everywhere.

Helping everyone connect is tougher and statistically more important. After all, three times as many Americans have access to networks but have not adopted service as those who simply have no available networks. Yet we devote far more to the availability gap than we do the adoption gap. in 2019 the ratio was greater than five to one—even though the cost to America of an individual not adopting is similar to the cost of an individual not having access.

To get everyone on, we have to address two critical issues: digital readiness and affordability. For digital readiness, we need a more focused effort at the local, state and federal level, for developing, testing and improving such efforts for targeted communities of non-adopters.

Affordability, however, is the most significant factor. Affordability can mean two things. First, it can mean the price of an average service. Second, it can mean the entry level price for a baseline service. Policy needs to explore both; if we are looking at the challenge of affordability for the currently unconnected, we have to prioritize addressing the second.

The current program for addressing that affordability is called Lifeline. It is inadequate in many respects, most obviously in the subsidy it offers, of $9.25 a month. It also is distributed poorly, with only 7 million of the 38 million eligible homes taking the benefit. But if the FCC increased both the subsidy and the number of recipients, it would blow up the current funding mechanism, which is based on an assessment on certain phone services that is already at 30%.

Further, even if the monthly subsidy could be increased, it would not necessarily lead to broadband where we need it. We should approach Lifeline reform by recognizing that certain public goods are enhanced with greater broadband in homes. We all benefit when all school children have to tools to do their homework and engage in other online learning in their homes. We also benefit when all can take advantage of telehealth in the home, both improving community health and lowering costs for the overall system. We all benefit when the unemployed are not cut off from on-line training or the tools to search, apply and interview for new jobs, diminishing the time they are unemployed.

The current Lifeline program does little to capture these benefits as in practice it is an important but limited mobile service. Simply increasing the subsidy and distribution mechanisms would not capture the benefits of home use.

We need to continue to improve efforts to connect all to voice services, but we also need to capture the public benefits of in home broadband. As to the benefits for school children, Congress to step up, as it did with the school lunch program and other federal support for schools serving low income students, ensuring that they have a baseline access to educational opportunities outside the classroom, which are overwhelming online. We also need to examine how the health and unemployment insurance programs can assist in getting such persons connected. Such programs can provide both efficient distribution mechanisms and use savings to the program to help offset the costs of a broadband benefit.

Some might argue that the FCC should use its authority to assess charges on other parts of the communications networks so as to fund in-home broadband needs itself. While that might make some theoretical sense, there are multiple problems.

First, as the recent legal battles on classifying carriers under Title I or II of the Communications Act have shown, any FCC assessment that is used to subsidize broadband has significant legal vulnerabilities until the classification controversy is resolved. Second, even if the courts were to uphold a Title II classification—the most favorable outcome for expanding FCC authority for increased assessments—the revenue base may still be too limited and charges on it tend to be regressive. Third, the issue is fraught with political difficulties, which is why, a decade after the National Broadband Plan called for reform, every FCC Chair has chosen to let his successor face the consequences of the unsustainable trends.

In short, counting on FCC action to reform the current system would likely delay closing the availability and adoption gaps for many years.

Finally, there is a utilization gap; the gap between how our communications networks are used today and how they could be used to improve outcomes in delivering essential services.

Yes, we need all students online to be able to continue learning outside the classroom, but we also need for tools that provide teachers the support they need to enable students to maximize the effectiveness of digital content. Yes, we need low income persons to be able to access telehealth, but we also need to improve how we use digital technologies to target and treat diseases that disproportionately afflict low-income communities. Yes, we need the unemployed to stay connected while searching for a job but we also need to us AI and other technologies to improve how we empower people to upgrade their skills for the jobs of the future. And we need to upgrade government services so that all can access critical information and assistance on a 24/7/365 basis.

There is no silver bullet for closing any of the three gaps. All three require multiple actions by multiple government institutions across different jurisdictions. By my rough and preliminary estimate, there are over 100 federal government actions that would useful in addressing one of the key questions for government in the next decade: how can we use the tools of the information society to create a more equitable and inclusive economy and society?

But it is also one area where there is a distinct possibility of a bipartisan effort to make progress. When I discuss these issues with Republican friends, I always ask if they think the country would be better off if there were broadband networks everywhere, if everyone who wanted to be was on, and if we used the networks to improve how we deliver health care, education and job training. The answer is always yes, something that was not true prior to COVID. I then ask if they think market forces alone will achieve those goals. The answer is always no. While we may disagree on specific policies—and while compromises will likely result in policies all sides view as sub-optimal—those answers set the stage for productive conversations and policies considerably better than we have today.

In contrast with the attitudes of decades past, COVID has created a broad and deep understanding that costs of digital exclusion are too great for our economy and society to tolerate. Congress and the incoming Administration, aided by an FCC that hopefully will take its role as an expert agency seriously, to finally assure that there are networks everywhere, everyone can get on, and that we use them to improve how we deliver essential services.

Blair Levin is a Senior Non-Resident Fellow at the Brookings Institution and a Policy Analyst for New Street Research, a global telecommunications and tech equity research firm. Previously he was Chief of Staff to the Chairman of the FCC, from 1993-1997, Executive Director of the effort that produced the 2010 United States National Broadband Plan, and he has consulted with a numerous cities, states and countries on broadband policy.

Fri, 11 Dec 2020 10:48:57 PST House Passes PACER Bill As Budget Office Says It Will Cost Less Than $1 Million A Year To Provide Free Access To Court Documents Tim Cushing We're one step closer to free access to federal court documents. The House has passed the Open Courts Act of 2020, moving it on to the Senate, which will decide whether the bill lands on the president's desk.

Yes, this sort of thing has happened before. And previous efforts have always died on their way to the Oval Office. But this one might be different. A growing collection of case law says the US Courts system has been overcharging users and illegally spending funds meant to improve the PACER system and, yes, lower the cost for users.

This latest effort has a bit more momentum than its predecessors. And that seems to worrying the US Courts, which has fought back with dubious assertions and even more dubious budget estimates. The court system claims it will cost at least $2 billion over the next several years to overhaul PACER and provide free access to documents. Experts say it will cost far less.

A group of former government technologists and IT experts dispute that figure. In a letter sent last week to the Judicial Conference of the United States, the group estimated the cost of a new system would be $10 million to $20 million over 36 months to build the system and between $3 million and $5 million annually to maintain and develop.

Even more damning is the Congressional Budget Office's estimate. According to its report, fixing the system and providing free access to most users would cost less than $1 million a year.

On net, CBO estimates that enacting H.R 8235 would increase the deficit by $9 million over the 2021-2030 period.

The report says overhauling the system will cost around $46 million. But that will be offset by fees the court system will be able to collect from "high-volume, for-profit users," which the CBO estimates to be about $47 million over the same period. After subtracting some expected revenue declines and indirect tax effects, the court system should net about $37 million over the next decade.

That should end the debate over cost but it probably won't. For whatever reason, the court system continues to insist giving citizens free access to court documents would bankrupt the system. If it can find allies receptive to its bad math in the Senate, it could end this bill's run.

But no one but the court system agrees with the court system's math. It's not just potential beneficiaries of free access providing much lower cost estimates. The government itself disagrees with this branch's budgetary suppositions. Hopefully, the CBO and the tireless work of transparency advocates will finally push free PACER past the Senate and onto the president's desk.

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Fri, 11 Dec 2020 09:34:00 PST Supreme Court Says Muslim Men Can Sue The FBI For Placing Them On The No-Fly List For Refusing To Become Informants Tim Cushing The FBI really enjoys its take on the War on Terror. Starting with the hassling of Muslims at airports and border entries, the FBI cultivates a large collection of confidential informants. These informants then find pliable individuals to target with extra attention, pushing them towards threatening to engage in violence. Then the FBI swoops in to arrest these supposed "terrorists" -- ones that often seem unable to stay gainfully employed, much less capable of carrying out terrorist attacks. The FBI's favorite targets are impressionable Muslim men with mental health issues -- ones its agents and informants radicalize right into jail cells.

It all starts at our nation's airports. If Muslims want to travel in and out of the United States (or just travel within the US), federal agents are always on hand to pressure them into becoming informants. Veiled threats are made and these targets are subjected to invasive searches and other harassment every time they set foot in an airport.

In some cases, Muslim men were placed on the "no fly" list simply for refusing to become government informants. A lawsuit filed in 2014 accused the FBI of retaliating against several Muslims who resisted the FBI's overtures. The district court ruled against the plaintiffs but the Second Circuit Court of Appeals revived the lawsuit in 2018, saying the men had sufficiently alleged violations of the Religious Freedom Restoration Act (RFRA). The government can't target people simply because of their chosen religion, but that's exactly what appears to be happening.

The case made its way to the Supreme Court and the nation's top court has sided [PDF] with the plaintiffs. The lawsuit can proceed and the FBI agents can be held accountable for violating the RFRA.

The government tried to argue the statute does not provide for lawsuits against federal officers in the personal capacity. Wrong, says the Supreme Court. The statute clearly states lawsuits can be brought against individuals, rather than their agency or the federal government as a whole.

We first have to determine if injured parties can sue Government officials in their personal capacities. RFRA’s text provides a clear answer: They can. Persons may sue and obtain relief “against a government,” §2000bb–1(c), which is defined to include “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” §2000bb–2(1) (emphasis added).

The Government urges us to limit lawsuits against officials to suits against them in their official, not personal, capacities. A lawsuit seeking damages from employees in their individual capacities, the Government argues, is not really “against a government” because relief “can be executed only against the official’s personal assets.” Kentucky v. Graham, 473 U. S. 159, 166 (1985).

The problem with this otherwise plausible argument is that Congress supplanted the ordinary meaning of “government” with a different, express definition. [...] A “government,” under RFRA, extends beyond the term’s plain meaning to include officials. And the term “official” does not refer solely to an office, but rather to the actual person “who is invested with an office.”

The Court then looks at whether or not damages can be pursued. This isn't a normal case alleging First or Fourth Amendment violations. The government argued this means damages can't be awarded. Again, the Supreme Court says the government is wrong.

A damages remedy is not just “appropriate” relief as viewed through the lens of suits against Government employees. It is also the only form of relief that can remedy some RFRA violations. For certain injuries, such as respondents’ wasted plane tickets, effective relief consists of damages, not an injunction. [...] it would be odd to construe RFRA in a manner that prevents courts from awarding such relief. Had Congress wished to limit the remedy to that degree, it knew how to do so.

If federal agencies want the law changed to shield them from accountability, they'll have to ask Congress to "fix" this perceived "wrong." The Court isn't going to get into the business of legislating from the bench (at least not in this case).

To be sure, there may be policy reasons why Congress may wish to shield Government employees from personal liability, and Congress is free to do so. But there are no constitutional reasons why we must do so in its stead.

It's an 8-0 shutout in favor of the plaintiffs who are now allowed -- six years after they filed their lawsuit -- to start holding the FBI accountable for its violation of their religious rights.

Fri, 11 Dec 2020 06:16:11 PST Deep Dive Shows FCC's Covid Response Was Largely Theatrical Nonsense Karl Bode Back in March, the Trump FCC put on a big show about a new "Keep America Connected Pledge" to help broadband users during COVID. In it, the FCC proudly proclaimed that it had gotten hundreds of ISPs to suspend usage caps and late fees, and agree to not disconnect users who couldn't pay for essential broadband service during a pandemic. The problem: the 60 day pledge was entirely voluntary, temporary, and because the FCC just got done obliterating its consumer protection authority over ISPs at lobbyist behest (as part of its net neutrality repeal), was impossible to actually enforce. It was regulatory theater.

The rather meaningless pledge has since expired despite the pandemic only getting worse. And because this FCC doesn't actually care about consumer protection (it literally doesn't even collect data on who is getting kicked offline for nonpayment during a plague), many ISPs simply ignored the pledge, and kicked users offline anyway; even disabled Americans who were told repeatedly by their ISPs that they wouldn't be booted offline for nonpayment during the crisis. Meanwhile, most ISPs have also restored their bullshit, arbitrary usage caps, making them a pretty additional penny during a crisis.

This week, Kelcee Griffis did an even deeper dive into the theatrical nature of the FCC's COVID consumer efforts. She obtained 3,000 complaints submitted to the FCC between June and August, and found that in 550 cases, consumers say they were kicked offline or faced late fees despite repeated promises from providers that they wouldn't do that:

"In some instances, customers begged the providers to work out a way to keep them connected, citing relatives who recently died or were hospitalized with the coronavirus, or budget constraints due to pandemic-related layoffs. Others reported they struggled to keep their small businesses afloat amid nationwide closures and stay-at-home orders, saying ISPs only added to their woes."

In many cases, consumers argued that they were actually worse off after getting ISP "help" than they had been if they hadn't done anything at all:

"Customers in New York, Arizona and Pennsylvania said ISPs promised extended or suspended data caps but did not inform them when they must start paying again for the increased capacity, resulting in bills that ranged from about $200 to $600.

A Mesa, Arizona, customer even expressed regret that they accepted help from Cox Communications.

"Now that the [$30 monthly] COVID discount is gone, I have a bill that is $30 higher than it was six months ago," the customer wrote in late July. "That is unreasonable to me. I would have been better off not having the COVID discount since it appears to me they off-set the discount by increasing the fees for the services I had."

Unless you're one of a surprisingly large contingent of folks that thinks kissing AT&T's, Comcast's, and Verizon's asses is helpful and serious adult policy, none of this should be particularly surprising. The FCC basically self-immolated at lobbyist behest, leaving it without the authority to do much during a major health and economic crisis. Even the things the FCC could be doing -- like actually tracking what struggling Americans are getting kicked offline -- it's simply not doing. Instead, it engaged in regulatory theater designed to make it look as if having crippled regulators during a crisis isn't a bad thing.

It's all part of a deep ideological delusion that exists in many corners and is propped up by a massive industry of telecom-linked monopoly apologists. Folks who would have you believe that if you mindlessly pander to natural monopolies, freeing them from "burdensome regulations" (read: absolutely anything that could help real people, markets, or competitors at the cost of monopoly revenues) it somehow results in near-Utopian outcomes. In reality, with neither competition nor adult oversight to constrain them, natural monopolies inevitably just double down on the same bad behavior.

There's literally forty years of history making this point abundantly clear, yet the U.S. seems utterly intent on learning absolutely nothing from history or experience.

Fri, 11 Dec 2020 03:16:11 PST ICE Withdraws Demand For Journalists' Sources After Having Its Unconstitutional Demand Outed By BuzzFeed Tim Cushing They say "sunshine is the best disinfectant." Sometimes, though, sunshine is the best RAID. When you've got government cockroaches (feel free to pronounce it like Tony Montana) trying to crawl all over your stuff, the best thing you can do is point all the wattage/candlepower you can on its indiscretions.

Earlier this month, ICE tried to pull some fucked up shit. It sent a subpoena -- one issued by its office, not a judge -- to BuzzFeed. It asked the journalists there to turn over information on their sources, apparently in hopes of closing the loop on internal investigations into leaked documents.

BuzzFeed refused. Even better, BuzzFeed posted the bullshit "request" ICE made -- one that asked the site's journalists to remain silent in the face of government overreach. The subpoena came with this request appended;

“You are requested not to disclose the existence of this summons for an indefinite period of time. Any such disclosure will impede this investigation and thereby interfere with the enforcement of federal law.”

BuzzFeed ignored this, along with the rest of the subpoena. Which it should. This was just internal paperwork masquerading as a government-sanctioned order. ICE has no legal right to demand information on BuzzFeed's sources. It seems highly unlikely any court would allow this incursion on First Amendment protections. Bypassing the court by issuing its own paperwork shouldn't be allowed. But somehow it is. Journalistic concerns know these requests are worth less than the paper they're printed on. The problem is that not everyone knows that and degenerates like ICE are counting on people being ignorant of their Constitutional rights and protections.

BuzzFeed knows what the government can and can't do without judicial blessing. So it published its refusal along with ICE's faux "demand" it remain silent about the agency's attempted Constitutional bypass. In response to its garbage being made public domain, ICE has rescinded its attempt to turn confidential sources into government witnesses/prosecution targets.

Immigration and Customs Enforcement officials said Wednesday that it would not enforce a subpoena issued last week demanding BuzzFeed News identify its sources, a retreat from its earlier, stunning attempt to interfere with a news outlet operating under the protections of the First Amendment.

By "won't," ICE means "can't." It would be the rare judge that would approve of ICE violating long-held First Amendment protections for journalists and their sources. Even if they found a compliant judicial pawn, any challenge by BuzzFeed would see this bogus subpoena tossed onto the trash heap of ICE's trash history by the next judge down the line.

The government cannot do this. And the government knows this. That ICE even tried indicates it's been huffing whatever the Trump administration has been shoving into its paper bags. Just because the outgoing Prez has a hard-on for booting brown people out of the country doesn't change the Constitutional calculus.