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Techdirt, and myself specifically, have had an awful lot to say about Nintendo. To be fair to me, not every post I write about the company is negative. But to be fair to anyone with a pair of eyeballs, much of it certainly has been negative. I find that the company prioritizes control of every last ounce of its IP over its own customers and fans, that the company behaves in a manner so aloof as to be almost comical, and that the company seems perfectly willing to break the entire concept of the American copyright system incentives by combatting all forms of "piracy" or use of its IP while also being perfectly willing to silo that IP in places where the public simply cannot legitimately access it.

Does that sound like anyone else to you? Because it sounds like Disney to me. And, frankly, Nintendo's latest move sounds like the gaming industry equivalent to precisely what Disney has historically done with its "vaulting" of certain movies for periods of time. In this case, Nintendo has shut down the 3DS and Wii U stores, all while saying that it doesn't currently plan to make those classic games available elsewhere.

- As of May 23, 2022, it will no longer be possible to use a credit card to add funds to an account in Nintendo eShop on Wii U or the Nintendo 3DS family of systems.

- As of August 29, 2022, it will no longer be possible to use a Nintendo eShop Card to add funds to an account in Nintendo eShop on Wii U or the Nintendo 3DS family of systems. However, it will still be possible to redeem download codes until late March 2023.

To be fair and clear, owners of a Wii U and 3DS will still be able to redownload purchased games and engage in online play after those dates. For how long? Well, according to Nintendo, for "the foreseeable future." Which... yeah. Part of the problem here, as Kotaku notes, is that the 3DS and Wii U were also places where gamers could actually purchase and own classic Nintendo titles. There really isn't an equivalent to that once those stores are shut down as the newer consoles rely on subscriptions for gamers to play those classic games. No game purchases, just access via the subscription. So with this ownership option going away, will Nintendo replace it somewhere else? Nope!

Across our Nintendo Switch Online membership plans, over 130 classic games are currently available in growing libraries for various legacy systems. The games are often enhanced with new features such as online play.

We think this is an effective way to make classic content easily available to a broad range of players. Within these libraries, new and longtime players can not only find games they remember or have heard about, but other fun games they might not have thought to seek out otherwise.

We currently have no plans to offer classic content in other ways.

And so, there you have it. This reads much like a Disney message. You can have the content you want only in the way we want you to have it, under the subscription model we prefer, and only at times we make it available to you. Oh, and we can change all that up at any time because, once again, you're not actually buying anything, you're just subscribing to a service.

Oh, and one more thing you may be thinking if you've been following along with my posts about video game preservation needing some attention. You may be remembering that Nintendo had a section on its site that specifically talked about game preservation. Well, don't go looking now, because it's gone.

Especially wild, then, is the fact that not long after publishing this, Nintendo wiped that particular section of the Q&A from its site. Go and check it now and the “Doesn’t Nintendo have an obligation to preserve its classic games by continually making them available for purchase?” part is gone.

All the while, of course, the company will continue to punish fans by going after ROM sites, fan-made creations and recreations, YouTube channels featuring classic Nintendo music, and all the rest. If Nintendo isn't the Disney of the gaming industry, it's as close as we're likely to get.

Welp. This isn't going to help future fundraising drives. Not when a public radio station is negatively affecting, you know, driving.

Drivers of certain vehicles in Seattle and other parts of Western Washington are shouting at their car radios this week. Not because of any particular song or news item that’s being broadcast, but because an apparent technical glitch has caused the radios to be stuck on public radio station KUOW.

The impacted drivers appear to all be owners of Mazda vehicles from between 2014 and 2017. In some cases the in-car infotainment systems have stopped working altogether, derailing the ability to listen to the radio at all or use Bluetooth phone connections, GPS, the rear camera and more.

Behold the collision of OTA and IO(car)T. This unique situation -- limited solely to drivers in the Upper West -- presented a host of new problems and a lot of speculative answers. The radio station had absolutely no idea why this was happening. One local dealership told a customer it had something to do with 5G, which apparently meant affected Mazdas were now infected with a car-borne form of COVID, presumably necessitating plenty of expensive diagnostics and what have you.

Fortunately, the cars' manufacturer was actually able to pinpoint the cause of the malfunction -- which left some drivers staring at in-car systems stuck in a perpetual "loading…" loop. The answer arrived roughly a week after the problem presented itself. The problem -- discussed in this entertaining Reddit thread -- had nothing to do with network upgrades or an unexplained bug in Mazda software.

Instead, the public radio station had done something completely unexpected, sending affected vehicles into in-car entertainment purgatory. This is the statement Mazda gave to Geekwire.

“Between 1/24-1/31, a radio station in the Seattle area sent image files with no extension, which caused an issue on some 2014-2017 Mazda vehicles with older software,” the Mazda statement said. “Mazda North American Operations (MNAO) has distributed service alerts advising dealers of the issue.”

While it's somewhat troubling to note that Mazdas manufactured within the last eight years are running what Mazda considers to be outdated software, the good news is that it can be fixed. The bad news follows the good news: due to shipping constraints affecting goddamn everything, drivers affected by this oddity shouldn't expect to see a fix anytime soon. "Part delays" cited by Mazda could put permanent fixes months off.

On the other hand (good news!), even older models will be covered by these repairs, whether or not they're still under warranty. The company has instructed dealers to honor "goodwill requests" for free repairs of affected vehicles. Back to the bad news: the part that apparently needs to be replaced is the ominous-sounding "connectivity master unit," which indicates a whole lot of connectivity will be affected until dealers get the part in stock and start dealing with the backlog of semi-bricked Mazdas. Some users have reported in-car entertainment systems stuck in permanent loops, non-functioning GPS systems, and bricked back-up cameras.

This isn't going to go well for Mazda, considering it's the only manufacturer whose systems have been rendered useless by a misconfigured file distributed by a radio station. While this situation is certainly an outlier, there's likely a reason other in-car entertainment systems weren't similarly affected, which suggests a crucial shortcoming in the tech installed in those models -- one that could be exploited by entities far more nefarious than local public broadcasters.

Over the last few years, it's been depressing to see politicians from both major political parties attacking free speech. As we noted last month, Washington state governor Jay Inslee last month started pushing a bill that would criminalize political speech. He kept insisting that it was okay under the 1st Amendment because he got a heavily biased constitutional lawyer, Larry Tribe, to basically shrug and say "maybe it could be constitutional?" But the bill was clearly problematic -- and would lead to nonstop nonsense lawsuits against political candidates.

Thankfully, cooler heads have prevailed in the Washington Senate and the bill has died. The bill's main sponsor is still insisting that it would survive 1st Amendment scrutiny, but also recognized that it just didn't have enough political support:

State Sen. David Frockt (D), who sponsored the bill, said, "We have to respect that the bill in its current form did not have enough support to advance despite the care we took in its drafting through our consultation with leading First Amendment scholars."

Inslee, for his part, still insists something must be done:

After the bill was defeated on Tuesday, Inslee said in a statement, "We all still have a responsibility to act against this Big Lie ... we must continue to explore ways to fight the dangerous deceptions politicians are still promoting about our elections."

And, look, I don't disagree that the Big Lie about the 2020 election is a problem. But you don't solve problems by censoring 1st Amendment protected speech. That never ends well. At all.

Spotify’s decision to hitch its star to podcaster and font-of-COVID-misinformation Joe Rogan has sparked a wave of pushback from musicians, some of whom--among them Neil Young, India Arie, and Joni Mitchell--have pulled their music from Spotify in protest. Spotify, for its part, has stood firmly by Rogan. 

That Spotify would stand by a show that consistently undermines vaccines and blithely spreads misinformation is disappointing--but, financially, it’s perfectly predictable. 

The short version: 

The law and economics of music streaming lead to one inevitable result: Spotify pays money when it streams music. It makes money when it streams podcasts. Therefore, Spotify has an incentive to keep people using Spotify -- just not for music. 

The legal regime around music licensing makes breaking even -- let alone turning a profit -- nearly impossible. Because the industry is notoriously secretive about its financials (a problem in and of itself), raw data is hard to come by. But the fact remains that investors (and industry observers) agree that music streaming as a loss-leader -- something that incurs a net loss for the service doing it, in the hopes of potentially looping consumers into the parent company’s product ecosystem. Apple Music and Amazon Music, the second and third largest streaming services by market share, both operate at a loss. Spotify, which has been in the US market since 2011, turned its first profit in 2021. It is still unclear whether it will manage to repeat the achievement. 

In short, experience indicates that a streaming service that plays only music will consistently lose money. And while this is a complex issue with many moving parts, one of the biggest is the law -- the market it creates, and the behavior it incentivizes. 

But First, How Does Music Copyright Work?

Each track involves not one, but two copyrighted works; the recorded performance (the “sound recording”), and the underlying composition (the “musical work”). Legally, these are two distinct things. This is partly a historical artifact; songwriting hit its stride in the very early 20th century, before mass distribution of recorded music was even a glimmer in anyone’s eye. Compositions got copyright protection in 1906 (and were thus given the now-confusingly-vague designation of “musical work”). Over the first half of the century, publishers and performing rights organizations sprang up to promote, distribute, and license songwriters’ work. It wasn’t until mid-century that the recording industry began to flourish on its own, and sound recordings didn’t even gain copyright protection until the late 1970s.

Because of this history, the two industries – songwriting and recording – operate under wildly different licensing structures. Copyright is, at its core, a government-granted right to exclude; when one player starts to accumulate a high volume of those rights, the risk of abusive market behavior rises. The composition side of the equation messed around and found out early. By the 1940s, the government had intervened and set up a complex system of antitrust enforcement, rate-setting, and mandatory licensing regimes. The result was a market that, for all its faults, remains relatively stable and predictable for licensees (and, as a side benefit, provides some transparency on how songwriters are paid).

The recording industry, by contrast, gained its copyright (and thus its monopoly power) in the mid 1970s. By then, antitrust law was in the middle of a Chicago school backlash that considerably narrowed its scope and purpose and regulators had lost the taste for the kind of vigorous enforcement that marked the early part of the 20th century. While regulators in the 1940s were willing to go after the songwriting industry’s bad behavior (cartels, extractive pricing, strong arm tactics, etc) their counterparts in the late 1970s were less enthusiastic. And so, unlike their composition-side brothers, labels exist in an unconstrained free market. 

Why It’s So Hard For Streaming Services to Make Money

As mentioned above, we have very little hard and fast data about how much labels are charging and what kinds of side deals they are striking to extract value from these services. But given what we do know about the industry -- and what the U.S. government has outright assumed is going on when doing things like setting royalty rates -- we have a pretty good idea.

Because labels have no meaningful guardrails on their licensing practices, they are free to maximize their own profit however they see fit. When it comes to streaming, their ideal situation is to extract as much value as possible without forcing the service completely under. This means that licenses are priced with the assumption that the streaming service will have to take on some (ideally sustainable) amount of debt to cover their licensing obligations. The alternatives to this aren’t a whole lot better, either; things like equity stakes, sweetheart deals, and algorithmic preferencing or promotion are commonplace. 

The result of all this is that it is structurally impossible for a streaming service to turn a profit using standard music deals alone. Labels are rational economic actors. Profit is value that is not being captured by labels; labels will rationally set prices to ensure that none of that value goes un-captured. Labels have the power to shut a service down simply by walking away from the table. 

Why Spotify Can’t Quit Joe Rogan 

It means that, despite being a music streaming company, music is (and will always be) a revenue loss for Spotify. To have any hope of turning a profit, it needs a low-cost, high-revenue offering. Enter podcasts – specifically Rogan’s podcast, which commands a minimum ad buy of $1M, along with a commitment to buy other ads on Spotify-hosted podcasts. 

So, when forced to choose between retaining portions of its legacy music catalog and keeping one of the only offerings that actually makes the service money, Spotify made the obvious (if morally objectionable) choice. It chose Joe Rogan.

And barring a major overhaul of music licensing law, starting with sound recordings, this will keep happening. We’ll either end up in a world where all mainstream streaming services will be backed by deep-pocketed tech giants (such as Apple, Amazon, and Google), or where music services are stuck relying on non-music content to stay afloat--even when that content is harmful.

Meredith Rose is Senior Policy Counsel at Public Knowledge

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Protests against police violence erupted around the country following the killing of an unarmed black man, George Floyd, by Minneapolis (MN) police officer Derek Chauvin. Chauvin ended Floyd's life by placing his knee on his neck for nearly nine minutes… and for more than three minutes after another officer informed Chauvin he could no longer detect Floyd's pulse.

The protests continued for months. Some were in solidarity. Others were provoked by recent acts of police violence. Protests in Phoenix, Arizona were nothing out of the ordinary. But the law enforcement response certainly was. It wasn't that the cops did anything that was unusual, per se. They did the normal stuff: they responded violently to protests against police violence, attacking protesters, stripping them of their belongings, and justifying these actions with overblown claims about fearing for their safety.

But it was prosecutors in Maricopa County, Arizona who took things to the next level. Apparently working in conjunction with a number of law enforcement entities, lead prosecutor April Sponsel, an attorney with the Maricopa County Attorney's Office, lied to a grand jury and abused local laws to add gang enhancements to the criminal charges brought against 15 arrested protesters. Sponsel, working with the Phoenix PD, claimed the use of black umbrellas (which protesters used to deflect tear gas canisters and "non-lethal" ammunition) and the acronym "ACAB" ["All Cops Are Bastards"] made the arrested protesters gang members.

This was serious shit. People arrested for rioting, failure to disperse, resisting arrest, or disorderly conduct were being saddled with (completely bullshit) gang charges that had the potential to add another 10 years to their sentences if convicted.

Prosecutor April Sponsel appeared to have been integral to the addition of gang crime sentence enhancements. The wife of a state trooper, Sponsel was the one who presented allegedly false information to a grand jury for the purpose of portraying the arrested protesters as a violent gang, rather than people coincidentally united by their desire to protest police violence. Shortly after the news broke about these bullshit prosecutions, Sponsel was placed on administrative leave while an outside investigation -- requested by Maricopa County prosecutor Allister Adel -- commenced.

Sponsel has been in the public eye for months. And she doesn't appear to like it. She may have enjoyed the backchannel support of local law enforcement as she found ways to stick it to people who were upset with the law enforcement status quo, but she apparently feels litigious about being called out over her gang enhancement bullshit.

April Sponsel, the lead prosecutor who handled the now-dismissed criminal case, filed a lawsuit against Maricopa County Attorney Allister Adel and the county itself in superior court on Friday seeking $10 million.

The Arizona Republic obtained a copy of the lawsuit on Tuesday, which asserts Adel defamed Sponsel in the media, invaded her privacy and caused the county to breach Sponsel’s employment contract.

Inexplicably, the Arizona Republic has decided not to share the obtained copy with readers. Instead, the copy of the lawsuit, embedded below, comes courtesy of Paul Weich, who is running for a position in the Arizona House. He also runs a blog covering area political activity.

Back to the matter at hand: Sponsel is claiming [PDF] the County Attorney defamed her by turning her into a scapegoat for prosecutions that resulted in significant political and public blowback. She claims Adel was fully aware of what was happening and never made any move to alter the course of the prosecution. She also claims she had full support of law enforcement when making the decision to treat the ACAB protesters as a gang. This is unsurprising. But it won't do much to help her win her lawsuit. All it really does is make involved law enforcement members look as petty and ignorant as Sponsel.

For instance:

The claim says she called Phoenix police Sgt. Doug McBride, a gang expert, who agreed the protesters should be classified as a gang on Oct. 20, 2020.

Of course a cop would want this to happen. It was, after all, a protest against law enforcement. If given the opportunity to make anti-police violence protesters suffer, law enforcement officers will opt to do so nearly every time. And it wasn't just this so-called "gang expert." It was every law enforcement agency involved in the arrests.

The lawsuit describes a meeting on Oct. 21, 2020 where “there were more than 30 law enforcement officers in the room, including a number of FBI and Phoenix Police Sergeants, Lieutenants, Commanders and Assistant Chiefs. No one in the meeting was opposed to the criminal street gang charges, and all agreed the charges were appropriate.”

Welcome to the herd and its mentality, April. Surely you were already aware of it. And you must also realize it isn't an adequate defense of your actions, nor does it further the defamation claims being brought against someone who apparently wasn't in the room during this discussion: County Attorney Allister Adel.

Making this battle even more uphill is the fact that an independent judicial review [PDF] of the arrests and prosecutions delivered by an Arizona judge last August contains plenty of evidence Sponsel pushed for gang charges and crafted her prosecution to bring the full pain of these sentence enhancements.

There's a lot in there that points to Sponsel being the person pushing for gang enhancements, over the protests of others. And there's evidence that she moved ahead with a grand jury presentation before a scheduled meeting with the County Attorney's office during which the disposition of these cases was supposed to be discussed.

On Friday October 23, 2020, according to his statement, [Maricopa County Attorney's Office Division Chief] Vince Goddard got a call from April Sponsel informing him there was going to be a press conference at the Phoenix Police Department and they wanted MCAO Allister Adel to attend. The chief of police was also asked and/or was scheduled to attend. He was told this was going to be the “big gang” case that she had talked about in September. Since he only heard about approximately 4 people, he was not sure what she was talking about. He again told her he did not like the “big case theory” where you have limited targets and you charge a large group people. He did not attend the press conference nor did he know if the County Attorney did. No information was provided if a press conference was held.

[...]

During the call with Vince Goddard, the subject of “warrants” was discussed, however, [Chief Deputy County Attorney] Ken Vick assumed he meant search warrants for houses and/or phone records. He was not aware nor was he told a Grand Jury presentation was scheduled for October 27th which would have been before the meeting on October 30th. He provided me the email exchange between Vince Goddard and himself which showed Ken Vick’s surprise and dismay that they had gone to the Grand Jury prior to the meeting.

This is going to make it very difficult to prove Adel was aware of the charges Sponsel was seeking and at least tacitly approved of them by not making any effort to stop her. So is this, from the report released last August:

Based upon the information given to the undersigned, the County Attorney Allister Adel was not briefed on the Grand Jury presentation in this case in the ten (10) days prior to the Grand Jury presentation. CA Adel never got a head's up that the case was going to a Grand Jury nor the charges April Sponsel would be seeking in a draft indictment. The County Attorney did not know a Grand Jury presentation was taking place on October 27th for arrests made on October 17th. The County Attorney was made aware on October 30th about the October 27th Grand Jury Indictment after the media made an inquiry with the office's communication director on Thursday, October 29th. The County Attorney did not attend the ‘incident review” on October 30th since she had been hospitalized on October 28th and she was not discharged until October 31st. This is collaborated by Ken Vick who was not told about the Grand Jury, nor the charges being sought and he did not know what was presented until the day before the October 30th “incident review”.

This lawsuit looks like the flailing of a suddenly toxic prosecutorial asset who thinks she was treated unfairly when the rest of Maricopa County Attorney's Office distanced itself from her and her overzealous prosecutions. The judicial investigation shows Sponsel went a bit rogue, bypassing most of the Attorney's Office to pursue her own vendetta. Unsurprisingly, when it blew up in her face, Allister Adel distanced herself from Sponsel and her actions.

So, this debacle will continue to make headlines for a few more years. No matter how this lawsuit goes, it's not going to rehabilitate Sponsel's image. Win or lose, it's already on the record she was the one that came up with the idea of saddling arrested protesters with gang charges. And she was the one who decided the interests of justice should take a backseat to her vindictive prosecutions.

Every year or so, the FCC unveils a new plan to combat robocalls it claims will finally tackle the annoying menace. Granted, year after year, the problem either gets worse or stays relatively the same. We've already noted that this is generally due to few things: one, a steady erosion by the courts (and lobbyists) of what the FCC can or can't actually do when it comes to various annoyances like automated spam texts or live robocalls.

The other issue is that regulators and policymakers tend to frame the problem as one exclusive to scammers -- when a wide variety of telecoms, marketing, and debt collection companies use all the same dodgy tactics to annoy consumers they often know can't pay anyway. If you hadn't noticed, trying to craft rules that leave huge carve outs for "legitimate" companies while still hamstringing outright scammers generally doesn't work very well. You've also got to craft rules and systems that allow robocalls people want (medical and dental appointment reminders, for example).

Even when only talking about scam robocalls, there's still room for meaningful improvement. The steady adoption of SHAKEN/STIR authentication technology has helped crack down on phone number spoofing. Targeting "gateway providers," who act as a proxy here in the U.S. for robocalls originating overseas, could also help.

Meanwhile the FTC says it's also going to start filing lawsuits against voice over IP (VOIP) companies that fail to cooperate with investigations into illegal robocalls:

"Companies that receive FTC Civil Investigative Demands must promptly produce all required information,” said Samuel Levine, Director of the FTC’s Bureau of Consumer Protection. “These demands are not voluntary. Companies that don’t respond fully, or don’t respond at all, will have to answer to a federal district court judge, as these cases demonstrate."

The agency receives upwards of two million consumer complaints about robocalls every nine months. The YouMail Robocall Index indicates that there are still 3.9 billion robocalls placed to U.S. consumers alone every single day, or 5.3 million robocalls per hour. And again, contrary to the narrative generally seeded by regulators, most U.S. robocallers aren't "scammers": they're cable companies, banks, and debt collectors.

And while a lot of the calls are companies calling about overdue bills, many of these calls cross a line into outright harassment. Many of these companies know the customers they're reaching out to can't pay; yet the National Consumer Law Center (NCLC) has repeatedly testified before Congress that these robocallers can sometimes call folks upwards of hundreds of times a day, even after being asked to stop. And they often use many of the same tactics used by outright scammers.

As with everything at the FTC, it's a matter of resources. The agency is tasked with tackling everything from bleach labeling to home heating system repair scams, generally with limited staff and funds. And while the FCC and FTC dole out a ton of fines against robocallers, the vast majority of them are simply never paid or collected. Either because the target company is a scammer that's hard to find, or they're a deep-pocketed corporation that can litigate any penalties for ignoring robocall rules into oblivion.

Again though, you'll notice focus remains on "illegal" robocalls, which is a problem when the courts and lobbyists keep weakening the definition of what constitutes a "legal" robocall and what regulators can do about it. The broader the definition and the more loopholes allowed to make sure large, "legitimate" companies can continue to annoy and harrass people, the easier they are for outright scam robocallers to exploit.

It's no secret government agencies love to screw with FOIA requesters. This is especially true when the responding agency doesn't care for the requester's attitude or thinks the release of information might lead to future negative reporting or embarrassment.

Most agencies, however, are careful not to set up any policies -- formal or informal -- that serve to deter certain requesters. And those that do have, so far, been lucky enough to not employ a whistleblower in their FOIA departments.

That's what happened to the Washington DC Metro Police Department, according to a recently filed lawsuit. Here's Elizabeth Nolan Brown with the details for Reason:

Did D.C. cops conspire to keep damning information from people and groups critical of them? That's what criminal defense lawyer Amy Phillips alleges in a new federal lawsuit, filed in the U.S. District Court for the District of Columbia.

The suit stems from a whistleblower's account of life inside the D.C. police department's Freedom of Information Act (FOIA) office. The whistleblower said she was instructed to flag for higher-ups any records requests coming from certain individuals and groups, as well as requests regarding certain sensitive topics. They would then strategize about ways to discourage, delay, or deny these requests.

Those targeted by this informal policy included reporters, activists, and members of local advisory groups. This is from former DC Metro PD FOIA officer Vendette T. Parker's sworn affidavit, which is attached to the defense lawyer's lawsuit [PDF]:

Some examples are Eric Flack, WUSA9 reporter; Marina Marraco, Fox5 reporter; the ACLU; Denise Krepp ANC [Advisory Neighborhood Commission] Commissioner; Lorenzo Greene, ANC Commissioner; Benjamin Douglass, Anti-Defamation League (ADL); Emily Barth, Public Defender's Office; and Amy Phillips, Public Defender's Office; among others.

This list was compiled by Parker and Metro PD Chief Operating Officer, LeeAnn Turner. As head of the FOIA office, Parker was expected to stonewall requests from requesters on the list as well as shield the department and its Chief of Police from embarrassment.

Although Ms. Turner did not name any specific individual in this meeting, she made it clear that I should bring to her attention any request coming from a person he has previously published a negative media article about Chief Newsham or MPD, if he uses the records for litigation if he is outspoken in City Council or community meetings in a negative way toward Chief Newsham or MPD, if the requester is the subject of a high profile incident, or if he repeatedly requests records that have the potential to be detrimental to Chief Newsham or MPD, regardless is of whether or not what is currently being requested is potentially detrimental.

The list of documents that might trigger this informal policy (no matter who requested them) were requests targeting the PD's controversial Gun Recovery Unit, personnel records, emails involving the police chief, use of force records, stop and frisk records, and anything involving "recent negative high profile events."

The list of requests and requesters was forwarded to Turner and the police chief and a weekly meeting was held to discuss how best to thwart requests that satisfied the unwritten criteria established by the PD's Chief Operating Officer.

Amy Philips first suspected something might be up after attending an Adverse Action Hearing for Officer Sean Lojocano, who was accused of conducting "unnecessarily invasive genital searches" of people he stopped. Despite this meeting being attended by other members of the public (including an ACLU rep and a local journalist), the Metro PD rejected Philips' request for recordings and transcripts of the hearing. And it did so in record time.

Less than ninety minutes after Phillips submitted her Lojocano request through the District’s online FOIA portal, she received a response denying her request in full. The response came from Latrina Crumlin, who identified herself as a “Staff Assistant, FOIA” for MPD. The response read “A release of such records would constitute as a [sic] clearly unwarranted invasion of personal privacy and is exempt from disclosure pursuant to D.C. Official Code § 2-534(a)(2) and (a)(3)(C).”  

This was wrong, and it was strange. Usually, MPD takes weeks or months to provide any substantive response to FOIA requests. And Crumlin’s position appeared to be that the records of a public hearing—one that Phillips and many others attended—were categorically excludable as invasions of someone’s privacy, which does not make any sense.

As Philips' lawsuit points out, a policy like this -- whether official or unofficial -- violates her First Amendment right to access this information. She's seeking an injunction forbidding the PD from engaging in future viewpoint and content based discrimination when handling FOIA requests.

While it's almost certain other public agencies are engaging in similar practices to thwart pesky requesters or delay public embarrassment for as long as possible, this is the first time a FOIA litigant has secured a sworn affidavit from someone who participated in FOIA keep away at the behest of their supervisors. That's going to go a long way in litigation like this and with any luck, the Metro PD won't be able to jerk people around in the future just because it doesn't like them or their requests.

In the past, whenever Senator Richard Blumenthal has been called out for his many terrible legislative ideas regarding regulating technology and the internet, he has a habit of dismissing all of the concerns by claiming the complaints are only coming from "big tech lobbyists." He did this a few years ago with FOSTA, which has since proven to be exactly the disaster many of us warned Senator Blumenthal about at the time. This time around, he's going straight to the same playbook again, and it's good to see that he's getting some pushback. Nathalie Maréchal, from Ranking Digital Rights has published a great piece over at Tech Policy Press: No, Senator Blumenthal, I am not a Big Tech Lobbyist.

Ranking Digital Rights is about as far from a "big tech lobbyist" as you can find. The organization has been advocating for the FTC to ban targeted advertising, which is basically the key way in which both Google and Facebook make the majority of their money. And yet, it also recognizes the dangers of EARN IT.

The article notes that over 60 human rights groups signed a detailed letter highlighting the many problems of the bill. For Blumenthal to simply dismiss all of those concerns -- put together by respected groups who are in no way "big tech lobbyists" -- shows his pure disdain for facts and unwillingness to put in the effort to understand the very real damage his bill will do should it become law.

It's shameful behavior for a US senator, even if not surprising.

A lawsuit filed against both California and federal law enforcement agencies claims the San Bernardino County Sheriff's Department is exploiting the disagreement between state and federal marijuana laws to stop and seize cash being transported from legal marijuana dispensaries.

Marijuana is legal in many forms in multiple states. Unfortunately, the federal government has yet to legalize marijuana in any form, putting purveyors of legal products at risk of being prosecuted by the federal government despite their adherence to local laws.

Empyreal -- a cash transport business -- has experienced the SBSD's abuse firsthand on multiple occasions.

The driver of an armored car carrying $712,000 in cash from licensed marijuana dispensaries was heading into Barstow on a Mojave Desert freeway in November when San Bernardino County sheriff’s deputies pulled him over. They interrogated him, seized the money and turned it over to the FBI.

A few weeks later, deputies stopped the same driver in Rancho Cucamonga, took an additional $350,000 belonging to legal pot stores and gave that cash to the FBI too.

The transport company says it complies with all federal laws pertaining to handling of cash generated by legal pot businesses -- something that is supposed to allow the cash to travel unmolested to banks willing to handle this cash. The banks also have to perform their own due diligence, which encompasses those entrusted with moving the cash from businesses to banks and vice versa.

Despite everything being on the apparent up-and-up, this particular sheriff thinks his department is doing the right thing by targeting vehicles officers can safely assume are full of cash and walking away with that cash while mumbling things about drug trafficking and money laundering. The department also sends out drug dogs to guarantee deputies have "permission" to perform warrantless searches, since it's highly likely proceeds from marijuana businesses will smell like marijuana.

(On top of that, a large percentage of cash in circulation contains trace amounts of drugs, which would logically be detected by drug dogs. This should be seen as evidence of nothing more than a bill being in circulation, but cops pretend it means the cash could only have come from drug sales. It's all extremely -- and conveniently -- stupid.)

San Bernardino Sheriff Shannon Dicus (one of the defendants in Empyreal's lawsuit) and his department are some of the main beneficiaries of cash seized during operations like these -- ones that involve federal agents to sidestep local marijuana legalization laws and ensure the retention of a majority of every dollar seized. That's because his department heads the Inland Regional Narcotics Enforcement Team (IRNET). IRNET's relationship to federally adopted forfeitures is extremely profitable.

Through the U.S. Department of Justice’s equitable sharing program, the Sheriff’s Department’s participation in IRNET enables it to receive up to 80% of the proceeds recovered from civil forfeitures, he said.

IRNET has obtained nearly $18 million in equitable sharing funds since 2016, according to the Department of Justice.

If these seizures were made without federal adoption, they'd be illegal. But with the FBI's help, the Sheriff's Department can continue to make millions a year by taking legally earned cash from cash transport trucks.

All this adds up to a suin', one being handled by the Institute of Justice, which has been instrumental in securing dozens of returns of property illegally seized by law enforcement. The lawsuit [PDF] notes that the San Bernardino sheriff isn't alone in his targeting of Empyreal cash trucks. The same Dickinson County (KS) deputy, Kalen Robinson, stopped Empyreal drivers twice and seized over $165,000 during the second stop, turning it over to the DEA.

San Bernardino Sheriff Dicus hasn't offered much in support of these stops and seizures -- none of which were accompanied by citations or criminal charges. What he has offered is something that exists solely within the boundaries of pure speculation.

In response to the lawsuit over the armored cars, Dicus released a statement claiming that more than 80% of the marijuana sold in licensed dispensaries is grown illegally, but he provided no evidence that any of the eight businesses whose cash deputies seized from Empyreal’s vans were selling black-market cannabis.

“My deputies are professional, and I am confident we will prevail,” Dicus said.

No one's doing any due diligence here, least of all Sheriff Dicus. His department isn't researching dispensaries and targeting them with searches and criminal charges. Instead, his department has decided to do the easiest and most profitable thing: allow dispensaries to sell allegedly illegally grown marijuana and then take their cash once it's conveniently located in the back of a transport van. This shows the department is far less interested in disrupting illegal drug sales and far more interested in profiting from illegal behavior it seemingly has no desire to stop.

Josh Hawley, the waifish fascist Senator from Missouri, has made it onto our pages several times in the past. When he's not advocating breaking up Twitter because he doesn't like how a private company is run (fascist), or breaking up lots of other companies he simply disagrees with (fascist), you can typically find him pretending the First Amendment works the exact opposite of how it does in reality or explaining in published books and newspaper pages how much he's been silenced and canceled. It might all look very stupid on its face, but it isn't. It's actually quite diabolical.  

Hawley is a graduate of both Stanford and Yale. And, sure, you can convince me that someone can graduate from both of those schools somehow while being an idiot, but that's not Hawley. When he advocates for fascist policies and generally acts like a right-wing radio talk show host, it's not because he's stupid. It's because he's an assbag.

Now that we've gotten that out of the way, let's talk about the Josh Hawley mug he's selling on his website.

See? He's an asshole. In case you can't see the image or don't know what the issue is, that picture of Hawley was snapped by the AP and was him saluting the crowd of strange people protesting outside the Capital building because their preferred candidate lost. Some of those people later stormed the capital in a violent attempt to overthrow the will of the America people. Now Hawley, in a plain bid to generate outrage, is utilizing that picture of him saluting that crowd in order to raise campaign funds. Immediately after the launch of the mug product, his team sent out an email fundraising on it, apparently purely over the joy of making liberals angry, which appears to be one of Hawley's major policy positions.

Everyone remembers the photo of profa senator Josh Hawley raising his fist to salute the murderous rioters who stormed the Capitol, injured 150 police officers, and tried to hang Mike Pence. Now Hawley is selling a curiously named "Show Me Strong White Coffee Mug" with the same image in an amateurishly designed graphic.

He says its a "perfect way to enjoy Coffee, Tea, or Liberal Tears!" and is "not a pro-riot mug."

None of this is new or creative. The liberal tears thing is at least as old as Ben Shapiro saying it all the time and is probably older than that. The slogan is lame. And the picture, as Boing Boing goes on to note, is from the AP.

In addition, his mug uses an image based on an Associated Press photograph and is probably a copyright violation. AP told Rolling Stone that it's investigating. As you might recall, artist Shepard Fairey used an AP photo of Obama a decade ago, and ended up paying AP an undisclosed amount to settle the copyright lawsuit.

And here is where we take the Techdirt turn. The Fairey case was settled out of court, but we argued all along the way that Fairey's use should have qualified as fair use. I take the same view of Hawley's use of an AP photo. The use is for raising campaign funds, rather than purely commercial use. The photo is being used as political speech. It's at least mildly transformative, although not as strongly as Fairey's, given that most people will recognize where that image is from. And, ultimately, Hawley's mug represents zero threat to the AP's business. The AP isn't selling mugs with the picture on it to those that wish to drink liberal tears.

So while it's fun to discuss what a jerk Hawley is, trying to pretend that we think this is copyright infringement just because I don't like him would be disingenuous. And I, unlike Josh Hawley, am not that.

Senator Richard Blumenthal is apparently a bottomless well of terrible internet regulation ideas. His latest is yet another "for the children" bill that will put children in serious jeopardy. This time he's teamed up with the even worse Senator Marsha Blackburn to introduce the Kids Online Safety Act, which as the name suggests is full of a bunch of overbearing, dangerous nonsense that will not protect children at all, but will make them significantly less safe while giving clueless, authoritarian parents much more power to spy on their kids.

About the only "good" part of the bill is that it doesn't attack Section 230. But the rest of it is nonsense, and based on a terrible misunderstanding of how, well, anything works. The bill doesn't just take its name from the UK's Online Safety Bill, but it also takes a similar "duty of care" concept, which is a nonsense way of saying "if you make a mistake, and let undefined 'bad stuff' through, you'll be in trouble." Here's the duty of care is self-contradictory nonsense:

BEST INTERESTS.—A covered platform has a duty to act in the best interests of a minor that uses the platform’s products or services

How the hell is a website going to know "the best interests of a minor" using its platform? That's going to vary -- sometimes drastically -- from kid to kid. Some kids may actually benefit from learning about controversial topics, while others may get dragged down into nonsense. There is no one way to have "best interests" for kids, and it's a very context-sensitive question.

PREVENTION OF HARM TO MINORS.—In acting in the best interests of minors, a covered platform has a duty to prevent and mitigate the heightened risks of physical, emotional, developmental, or material harms to minors posed by materials on, or engagement with, the platform, including—

(1) promotion of self-harm, suicide, eating disorders, substance abuse, and other matters that pose a risk to physical and mental health of a minor;
(2) patterns of use that indicate or encourage addiction-like behaviors;
(3) physical harm, online bullying, and harass17 ment of a minor;
(4) sexual exploitation, including enticement, grooming, sex trafficking, and sexual abuse of minors and trafficking of online child sexual abuse material;
(5) promotion and marketing of products or services that are unlawful for minors, such as illegal drugs, tobacco, gambling, or alcohol; and
(6) predatory, unfair, or deceptive marketing practices.

So, so much of this is nonsense, disconnected from the reality of how anything works, but let's just focus in on the whole thing about how a covered platform has a duty to "prevent and mitigate" risks associated with "eating disorders." Last year we had a content moderation case study all about the very, very difficult and nuanced questions that websites face in dealing with content around eating disorders. Many of them found that trying to ban all such conversations actually backfired and made the problem worse. But often by allowing conversations about eating disorders it actually helped steer people away from eating disorders. In fact, much of the evidence showed that (1) people didn't start getting eating disorders from reading about others with eating disorders, and (2) people writing about their eating disorders made it easier for others to come and help them find the resources they needed to get healthy again.

In other words, it's not a matter of telling websites to block information about eating disorders -- as this Blumenthal and Blackburn bill would do. That will often just sweep the issue under the rug, and kids will still have eating disorders, but not get the help that they might have otherwise.

Once again, a Blumenthal bill is likely to make the problem it ostensibly tries to solve "worse." There is similar evidence that suicide prevention is an equally fraught area, and it's not nearly as simple as saying "no discussions about suicide," because often forums for discussing suicide are where people get help. But under this bill that will be prevented.

This bill takes extremely complex, nuanced issues, which often need thoughtful, context-based interventions, and reduces to block it all. Which is just dangerous. Because kids who are interested in suicide or eating disorders... are still going to be interested in those things. And if the major websites, with big trust and safety teams and more thoughtful approaches to all of this are forced to take down all that content, the kids are still going to go looking for it and they're going to end up on sketchier and sketchier websites, with fewer controls, fewer thoughtful staff, and it is much more prone to a worse outcome.

Honestly, this approach to regulating the internet seems much more likely to cause serious, serious problems for children.

Then, there's the terrible, terrible parental surveillance section. The bill would mandate websites provide "parental tools" that would be "readily-accessible and easy-to use" so parents can spy on their kids' activities online. Now, to avoid the problems of surreptitious surveillance, which would be even worse, the bill does note that "A covered platform shall provide clear and conspicuous notice to a minor when parental tools are in effect." That's certainly better than the opposite, but all this is doing is teaching kids that constant surveillance is the norm.

This is not what we should be teaching our kids.

I know how tempting it is for parents to want to know everything their kids are doing online. I know how tempting it is to be afraid about what kids are getting up to online, because we've all heard various horror stories. But surveilling kids of all ages, all the time is a stupid, dangerous idea. First of all, the kinds of things that a parent of a six-year-old might need are drastically different than the parents of a 16-year-old. But the bill treats everyone 16 and younger the same.

And there are already lots of tools parents can use -- voluntarily -- to restrict the behavior of their kids online. We don't need to make it the expected norm that every website gives parents tools to snoop on their kids. Because that alone can do serious damage to kids. Just a few months ago there was an amazing article in Wired about how dangerous parental surveillance of kids can be.

Constant vigilance, research suggests, does the opposite of increasing teen safety. A University of Central Florida study of 200 teen/parent pairs found that parents who used monitoring apps were more likely to be authoritarian, and that teens who were monitored were not just equally but more likely to be exposed to unwanted explicit content and to bullying. Another study, from the Netherlands, found that monitored teens were more secretive and less likely to ask for help. It’s no surprise that most teens, when you bother to ask them, feel that monitoring poisons a relationship. And there are very real situations, especially for queer and trans teens, where their safety may depend on being able to explore without exposing all the details to their family.

And yet, this bill requires the kind of situation that makes teenagers less safe, and pushes them into more risky and dangerous activity.

Why is it every Blumenthal bill "for the children" will make children less safe?

And just think about how this plays out for an LGBTQ child, brought up in a strictly religious family, who wants to use the internet to find like-minded individuals. Under this bill, that information gets reported back to the parents -- and seems way more likely to lead to distress, harm and even possibly suicidal ideation -- because of this bill.

In other words, this bill tries to prevent suicide by forcing websites to take down information that might help prevent suicides, and then forces vulnerable kids in dangerous home environments to share data with their parents, which seems more likely to drive them towards suicide.

It's like the worst possible way of dealing with vulnerable children.

There are, of course, other problems with the bill, but the whole thing is based on a fundamental misunderstanding of how to raise resilient kids. You don't do it by spying on their every move. You do it by giving kids the freedom to explore and learn, but equipped with the knowledge that not everything is safe, and not every idea is a good one. You teach them to recognize that the world can be dangerous, but they need to learn how to be equipped to deal with that. Obviously, the best strategies for that will differ at different ages and based on the individual child. But assuming that all children up to age 16 must be surveilled by their parents and that websites should be forced to block information about which many kids will want to explore, seems like it would create a horrifically bad result for many, many children -- including the most vulnerable.

It's truly incredible how many horrible, horrible laws about the internet one man can sponsor, but Senator Blumenthal really has become a one-man "terrible bill idea" shop. People of Connecticut: do better. As for Blackburn, well, she's always been terrible, but I find it amusing to remind people she put out this video a decade ago, screaming about how the internet should never be regulated. And now look at her.

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I've already talked about the potential 1st Amendment problems with the EARN IT Act and the potential 4th Amendment problems with it as well. But a recent post by Riana Pfefferkorn at Stanford raises an even bigger issue in all of this: what actual problem is EARN IT trying to solve?

This sounds like a simple question with a potentially simple answer, but the reality, once you start to dig in, suggests that either (1) the backers of EARN IT don't actually know, or (2) if they do know, they know what they actually want is unconstitutional.

Supporters of EARN IT will say, simply, the problem they're trying to solve is the prevalence of child sexual abuse material (CSAM) online. And, that is a real problem (unlike some other moral panics, CSAM is a legitimate, large, and extraordinarily serious problem). But... CSAM is already very, very illegal. So, if you dig in a little further, supporters of EARN IT will say that the problem they're really trying to solve is that... internet companies don't take CSAM seriously enough. But, the law (18 USC 2258A already has pretty strict requirements for websites to report any CSAM they find to NCMEC (the National Center for Missing & Exploited Children) -- and they do. NCMEC reported that it received almost 21.4 million reports of CSAM from websites. Ironically, many supporters of EARN IT point to these numbers as proof that the websites aren't doing enough, while also saying it proves they don't have any incentive to report -- which makes no sense at all.

So... is the problem that those 21.4 million reports didn't result in the DOJ prosecuting enough abusers? If so... isn't the problem somewhere between NCMEC and the DOJ? Because the DOJ can already prosecute for CSAM and Section 230 doesn't get in the way of that (it does not immunize against federal criminal law). And, as Riana noted in her article, this very same Senate Committee just recently heard about how the FBI actually knew about an actual serial child sex abuser named Larry Nasser, and turned a blind eye.

And, if NCMEC is the problem (namely in that it can't process the reports fast enough), then this bill doesn't help at all there either, because the bill doesn't give NCMEC any more funding. And, if the senators are correct that this bill would increase the reports to NCMEC (though it's not clear why that would work), wouldn't that just make it even more difficult for NCMEC to sort through the reports and alert law enforcement?

So... is the problem that companies aren't reporting enough CSAM? If you read the sponsors' myths and facts document, they make this claim -- but, again, the law (with really serious penalties) already requires them to report any CSAM. Taking away Section 230 protections won't change that. Reading between the lines of the "myths and facts" document, they seem to really be saying that the problem is that not every internet service proactively scans every bit of content, but as we've discussed that can't be the problem, because if that is the problem, EARN IT has a massive 4th Amendment problem that will enable actual child sex abusers to suppress evidence!

Basically, if you look step by step through the potential problems that supporters of the bill claim it tries to solve, you immediately realize it doesn't actually solve any of them. And, for nearly all of the potential problems, it seems like there's a much more efficient and effective solution which EARN IT does not do. Riana's post has a handy dandy table walking down each of these paths, but I wanted to make it even clearer, and felt that a table isn't the best way to walk through this. So here is her chart, rewritten (all credit to her brilliant work):

If online services don't report CSAM in violation of 2258A, and the real problem is large-scale, widespread, pervasive noncompliance by numerous providers that knowingly host CSAM without removing or reporting it (NOT just occasional isolated incidents), then there's a very long list of potential remedies:

• Conduct a congressional investigation to determine the extent of the problem
• Hold a hearing to ask DOJ why it has never once brought a 2258A prosecution
• DOJ prosecutes all those providers for illegally hosting CSAM under 2252A as well as violating 2258A’s reporting requirements
• Amend 2258A(e) to increase penalties for noncompliance
• Amend Dodd-Frank to include 2258A compliance in corporate disclosure requirements (akin to Form SD)
• Encourage FTC investigation of noncompliant companies for unfair or deceptive business practices
• Encourage private plaintiffs to file securities-fraud class actions against publicly-traded providers for misleading investors by secretly violating federal reporting duties

If that's the actual problem (which supporters imply, but when you try to get them to say it outright they hem and haw and won't admit it), then it seems like any of the above list would actually be helpful here. And the real question we should be asking is why hasn't the DOJ done anything here?

But what does EARN IT actually do?

• Amend Section 230 instead of enforcing existing law
• Don’t demand that DOJ explain why they aren’t doing their job

Okay, so maybe the supporters will say (as they sometimes admit) that most web sites out there actually do report CSAM under 2258A, but there are still some providers who don't report it and these are occasional, isolated instances of failure to report by multiple providers, OR repeated failure to report by a particular rogue provider (NOT a large-scale problem across the whole tech industry). If anything, that seems more probably than the first version, which doesn't seem to be reported by any facts. However, here again, there are a bunch of tools in the regulator's tool box to deal with this problem:

• Conduct a congressional investigation to determine the extent of the problem
• Hold a hearing to ask DOJ why it has never once brought a 2258A prosecution
• DOJ prosecutes those isolated violations or the particular rogue provider

Again, what it comes down to in this scenario is that the DOJ is not doing it's job. The law is on the books, and the penalties can be pretty stiff (first failure to report is $150,000 and each subsequent failure is another $300,000). If it's true that providers are not doing enough here, such penalties would add up to quite a lot and the question again should be why isn't the DOJ enforcing the law?

But instead of exploring that, here's what EARN IT actually does:

• Amend Section 230 instead of enforcing existing law
• Don’t demand that DOJ explain why they aren’t doing their job

Okay, so next up, Riana points out that maybe it's possible that the DOJ does regular investigations of websites failing to report CSAM in violation of 2258A, but those investigations are consistently resolved without charges or fines and do not become public. Then, there's a pretty simple option for Congress:

• Hold hearings to have DOJ explain why their investigations never result in charges

But, instead, here's what Congress is doing with EARN IT (stop me if you've heard this one before):

• Amend Section 230 instead of enforcing existing law
• Don’t demand that DOJ explain why they aren’t doing their job

Okay, okay, so maybe the reality is that the DOJ does in fact criminally prosecute websites for 2258A violations, but the reason there is no public record of any such prosecution ever is that all such court records are under seal. This would be... odd, first of all, given that the DOJ loves to publicize prosecutions, especially over CSAM. But, again, here's what Congress could do:

• Tell DOJ to move for courts to unseal all sealed records in 2258A cases
• Require DOJ to report data on all 2258A prosecutions since 2258A’s enactment
• Amend 2258A to require regular reporting to Congress by DOJ of enforcement statistics
• Investigate whether providers (especially publicly-traded ones) kept 2258A fines a secret

But, instead, here's what EARN IT does:

• Amend Section 230 instead of enforcing existing law
• Don’t demand that DOJ reveal to Congress its 2258A enforcement details

So, maybe the real problem is simply that the DOJ seems to be ignoring any effort to enforce violations of 2258A. If that's the case, Congress has tools in its toolbox:

• Hold a hearing to ask DOJ why it has never once brought a 2258A prosecution
• Amend 2258A by adding a private right of action so that victims can do the work that DOJ isn’t doing

Instead, EARN IT...

• Amend Section 230 instead of enforcing existing law
• Don’t demand that DOJ explain why they aren’t doing their job

So... that's basically all the possible permutations if the problem is -- as some supporters claim repeatedly -- that companies are regularly violating 2258A and not reporting CSAM that they find. And, in almost every case, the real questions then should be why isn't the DOJ enforcing the law? And there are lots of ways that Congress should deal with that. But EARN IT does literally none of them.

About the only thing that supporters of EARN IT have claimed in response to this point is that, because EARN IT allows for state AGs and civil suits, it is "adding more cops to the beat" to take on failures to report under 2258A. But... that's kinda weird. Because wouldn't it make a hell of a lot more sense to first find out why the existing cops don't bother? Because no one has done that. And, worse, when it comes to the civil suits, this response basically means "the DOJ doesn't care to help victims of CSAM, so we're leaving it up to them to take matters into their own hands." And that doesn't seem like a reasonable solution no matter how you look at it.

If anything, it looks like Congress putting the burden for the DOJ's perpetual failings... on the victims of CSAM. Yikes!

Of course, there are other possible problems here as well, and Riana details them in the chart. In these cases, the problems aren't with failure to report CSAM, but elsewhere in the process. So... if websites do properly report CSAM to NCMEC's CyberTipline, perhaps the problem is that CSAM isn’t being taken down promptly enough or reported to NCMEC “as soon as reasonably possible” as required by 2258A(a)(1)(A)(i).

Well, then, as Riana notes, there are a few things Congress could do:

• Debate whether to insert a firm timeframe into 2258A(a)(1)(A)(i)
• Hold a hearing to ask ICS providers of various sizes why delays happen and whether a specific timeframe is feasible

Instead, what EARN IT actually does is...

• Amend Section 230

Okay, so if companies are reporting to NCMEC in compliance with 2258A, perhaps the problem is the volume of reports is so high that NCMEC is overwhelmed.

Well, then, the possible solutions from Congress would seem to be:

• Hold a hearing to ask NCMEC what it would take to process all the reports they already get
• Appropriate those additional resources to NCMEC

But, what EARN IT does is...

• Amend Section 230 to induce providers to make even more reports NCMEC can’t keep up with
• Give zero additional resources to NCMEC

Okay, so maybe the websites do properly report CSAM to NCMEC, and NCMEC is able to properly alert the DOJ to the CSAM such that the DOJ should be able to go prosecute the actual abusers, but the DOJ doesn’t act on the reports providers make, and doesn’t make its own mandatory reports to Congress about internet crimes against children. That would be horrifying, but again, it would seem like there's a pretty clear course of action for Congress:

• Order GAO to conduct a study on what happens to CyberTips passed by NCMEC to DOJ
• Hold a hearing to ask DOJ why it isn’t acting on tips or filing its required reports
• Appropriate additional resources to DOJ

All of those would help, if this is the problem, but instead, here's what EARN IT actually does:

• Earmark $1 million for IT improvements
• Don’t demand that DOJ explain why they aren’t doing their job

You might sense a pattern here.

And finally, perhaps websites do report CSAM in compliance with 2258A to NCMEC's CyberTipline, and maybe NCMEC does relay important information to the DOJ... and horrifyingly, perhaps federal law enforcement is failing child sex abuse victims just as the FBI turned a blind eye to Larry Nassar’s abuse of dozens of child gymnasts for years.

Well, then it seems fairly obvious what Congress should do:

• Hold a hearing on the FBI’s failure to protect children (this did happen in September 2021)

But here's what EARN IT does in that situation:

• Amend Section 230, effectively delegating enforcement for child sexual abuse to states and victims themselves

As Riana summarizes:

No matter what the problem with online CSAM is, EARN IT isn’t going to fix it. It’s only going to make things worse, both for child victims and for everyone who uses the internet. The truth about EARN IT is that either there isn’t a serious noncompliance problem among providers that’s pervasive enough to merit a new law, but Congress just can’t resist using Section 230 as a political punching bag to harm all internet users in the name of sticking it to Big Tech… or there is a problem, but the DOJ is asleep at the wheel – and EARN IT is a concession that Congress no longer expects them to do their jobs.

Either option should be shameful and embarrassing for the bill’s supporters to admit. Instead, this horrible legislation, if it passes, will be hailed as a bipartisan victory that shows Congress can still come together across the aisle to get things done. Apparently, harming Americans’ rights online while making CSAM prosecutions harder is something both parties can agree on, even in an election year.

So, whatever problem the backers of EARN IT think they're solving for, EARN IT doesn't do it. That seems like it should be a big fucking deal. But, instead of responding to these points, the sponsors claim that people highlighting this "don't care about CSAM."

Techirt has long discussed how in the modern era, the things you buy aren't actually the things you buy. And the things you own aren't actually the things you own. Things you thought you owned can be downgraded, bricked, or killed off entirely without much notice. That game console with backward compatibility? It no longer has backward compatibility. That smart home hub or smart speaker at the heart of your living room setup you've enjoyed for years? It not long works. The movies and books you thought were permanently in your personal catalog? Sorry, they aren't anymore. That perfectly good two-year-old phone? It no longer gets security updates, putting you and your data at risk.

This is all bad enough when talking about smart home hubs or smart refrigerators, but it's quite another thing entirely when it comes to medical implants. IEEE Spectrum has the Cory Doctorow-esque cautionary tale of Second Sight Medical Products whose Argus optical implants were commonly installed in patients in the early aughts to help them see. Accurately heralded as immeasurably innovative at the time, these devices may soon no longer work or be supported because the company that made them is going bankrupt:

"Terry Byland is the only person to have received this kind of implant in both eyes. He got the first-generation Argus I implant, made by the company Second Sight Medical Products, in his right eye in 2004 and the subsequent Argus II implant in his left 11 years later. He helped the company test the technology, spoke to the press movingly about his experiences, and even met Stevie Wonder at a conference. “[I] went from being just a person that was doing the testing to being a spokesman,” he remembers.

Yet in 2020, Byland had to find out secondhand that the company had abandoned the technology and was on the verge of going bankrupt. While his two-implant system is still working, he doesn’t know how long that will be the case. “As long as nothing goes wrong, I’m fine,” he says. “But if something does go wrong with it, well, I’m screwed. Because there’s no way of getting it fixed."

Users went from the miracle of suddenly being able to see their first Christmas tree, to the terror of the gift being taken away from them with absolutely no recourse. Not only that, the systems that were installed create new health complications if they're left installed but stop working, and are difficult to remove -- a cost that has to be eaten by the patients. The company's patients went from having their lives revolutionized by technology to, well, the opposite:

"These three patients, and more than 350 other blind people around the world with Second Sight’s implants in their eyes, find themselves in a world in which the technology that transformed their lives is just another obsolete gadget. One technical hiccup, one broken wire, and they lose their artificial vision, possibly forever."

It's quite the cautionary tale for the entire electroceutical sector, and those who assume the cutting edge technologies that help them today will stick around for tomorrow. It's one thing for your flip phone or Betamax player to become irrelevant, it's another thing for essential health devices embedded in your skull to simply stop working because their manufacturer couldn't keep their finances in order.

Auguste Rodin is without doubt one of the greatest sculptors in history. Equally without doubt, his works are now in the public domain, since he died in 1917. Unfortunately, the situation in France is a little more complicated, for reasons the artist and public domain campaigner Cosmo Wenman explains:

Shortly before his death, Rodin willed his estate to the French government, which created the Musée Rodin and assigned to it droit moral (“moral rights”) in Rodin’s oeuvre. By these rights the museum is permitted under French law to manufacture and sell a limited quantity of modern, posthumous bronze casts and represent them as “original” Rodin works. Musée Rodin earns considerable income from sales of such posthumous casts, as well as unlimited, simple reproductions.

Musée Rodin’s moral rights apply only within French jurisdictions, and only in very limited circumstances. They do not impinge on the public domain status of Rodin’s works, nor on the public’s right to freely copy them, even within France.

Wenman believes that museums, art galleries and private collectors around the world should make 3D scans of important public domain works and release them freely, thereby becoming “engines of new cultural creation”. The Musée Rodin disagrees, presumably because it is concerned that its monopoly on “original” posthumous casts might be devalued. As a result, it has been fighting for some years Wenman’s efforts to obtain the museum’s 3D scans of Rodin’s works through the courts.

Wenman has tweeted an update on his lawsuit. One piece of good news is that thanks to his legal campaign, the scans carried out for the Musée Rodin’s of two famous works – “The Kiss” and “Sleep” – are now freely available. Even better news is that Wenman has discovered the Musée Rodin has scanned its entire collection at high resolution. As he says: “These documents are of world wide interest and immeasurable artistic, academic, cultural, and commercial value. I am going after all of them, for everyone.”

It’s regrettable that some museums and galleries are still resisting these attempts to liberate public domain works. When those who are supposedly the guardians of society’s cultural patrimony are fighting to stop people from having full and free access to it, it’s clear that copyright’s poison, based on ownership and exclusion, has entered deep into their souls.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Originally published to the Walled Culture site.

Summary:

YouTube creators have frequently complained about the opaque and frustrating nature of the platform’s appeals process for videos that are restricted or removed for violating its Community Guidelines. Beyond simply removing content, these takedowns can be severely damaging to creators, as they can result in “strikes” against a channel. Strikes incur temporary restrictions on the user’s ability to upload content and use other site features, and enough strikes can ultimately lead to permanent channel suspension.

Creators can appeal these strikes, but many complain that the response to appeals is inconsistent, and that rejections are deemed “final” without providing insight into the decision-making process or any further recourse. One such incident in 2020 involving high-profile creators drew widespread attention online and resulted in a rare apology and reversal of course by YouTube.

On August 24, 2020, YouTube creator MoistCr1TiKaL (aka Charlie White, who also uses the handle penguinz0), who at the time had nearly six-million subscribers, posted a video in which he reacted to a viral 2014 clip of a supposed “road rage” incident involving people dressed as popular animated characters. The authenticity of the original video is unverified and many viewers suspect it was staged for comedic purposes, as the supposed “violence” it portrays appears to be fake, and the target of the “attack” appears uninjured. Soon after posting his reaction video, White received a strike for “graphic content with intent to shock” and the video was removed. On September 1, White revealed on Twitter that he had appealed the strike, but the appeal was rejected.

White then posted a video expressing his anger at the situation, and pointed out that another high-profile YouTube creator, Markiplier (aka Mark Fischbach), had posted his own reaction to the same viral video nearly four years earlier but had not received a strike. Fischbach agreed with White and asked YouTube to address the inconsistency. To the surprise of both creators, YouTube responded by issuing a strike to Fischbach’s video as well.

The incident resulted in widespread backlash online, and the proliferation of the #AnswerUsYouTube hashtag on Twitter, with fans of both creators demanding a reversal of the strikes and/or more clarity on how the platform makes these enforcement decisions.

Company considerations:

• If erroneous strikes are inevitable given the volume of content being moderated, what are the necessary elements of an appeals process to ensure creators have adequate recourse and receive satisfactory explanations for final decisions?
• What are the conditions under which off-platform attention to a content moderation decision should result in further manual review and potential reversals outside the normal appeals process?
• How can similar consideration be afforded to creators who face erroneous strikes and rejected appeals, but do not have large audiences who will put off-platform pressure on the company?

Issue considerations:

• How can companies balance the desire to directly respond to controversies involving highly popular creators with the desire to employ consistent, equitable processes for all creators?
• How should platforms harmonize their enforcement decisions when they are alerted to clear contradictions between the decisions on similar pieces of content?

Resolution:

On September 2, a few hours after Fischbach announced his strike and White expressed his shock at that decision, the TeamYouTube Twitter account replied to White and to Fischbach with an apology, stating that it had restored both videos and reversed both strikes and calling the initial decision “an over-enforcement of our policies.” Both creators expressed their appreciation for the reversal, while also noting that they hope the company makes changes to prevent similar incidents from occurring in the future. Since such reversals by YouTube are quite rare, and apologies even rarer, the story sparked widespread coverage in a variety of outlets.

Originally posted to the Trust and Safety Foundation website.

The problem with Space X's Starlink, as we've noted a few times, is several fold. One, the initial deployment of roughly 12,000 low orbit satellites is only going to be able to service around 500,000 to 800,000 total subscribers. In a country with 20-40 million who lack broadband, and another 83 million who live under a broadband monopoly. So despite a lot of rhetoric to the contrary, it's barely going to put a dent in the problem it claims to solve. At $100 per month (plus $500 hardware charge) it's also not all that affordable, the other major issue for rural Americans without broadband.

The other major problem for Starlink is the fact the low orbit constellations cause significant light pollution that harms scientific research, something Musk insisted absolutely wouldn't happen and scientists say can't be mitigated. For Starlink to have a meaningful impact at scale (and make any money in the process) it needs both the struggling Raptor engine delays to be resolved, it needs supply chain issues to be resolved, and it needs to launch roughly 30,000 second generation Starlink satellites.

But NASA is now warning the FCC that those newer satellites will cause even more problems for scientific research, space flight, and the Hubble telescope:

"The Hubble orbits at 535 km, and about "8 percent of composite images captured by the Hubble telescope are impacted by satellites captured during exposures," NASA said. "This proposed Starlink license amendment includes 10,000 satellites in or above the orbital range of Hubble, a situation that could more than double the fraction of Hubble images degraded." NASA also said that "degradation severity will increase."

NASA's letter to the FCC dings Starlink for being overly optimistic about this all either not being a problem or somehow working itself out (which has been a bit of a trend with the company). And again, this is all for a service whose reviews have not been particularly great.

U.S. and European regulators alike were so high on Musk's promise of next-gen connectivity they generally haven't done much to implement basic guidelines for deployments or the rise of "space junk." Worse, the Trump FCC decided to dole out nearly a billion in subsidies to Musk (who claims to loathe subsidies) to deploy Starlink broadband to areas that didn't make any coherent sense (like traffic medians and airport parking lots). Some of those subsidies have been rolled back via scrutiny by the Rosenworcel FCC, but it's still not clear why the wealthiest man on the planet needs subsidization of any kind.

So far, Starlink only has about 150,000 customers due to supply chain constraints, and many of the customers waiting in line say Starlink customer service is basically nonexistent. And while the service will certainly be a big step up for folks stuck in remote locations who can afford it, the reality is the majority of people just aren't going to be able to get the service anytime soon. Given the country could instead focus on the uniform deployment of fiber and 5G, it continues to raise the question of whether any of this is actually worth it.

No one cuts cops more slack than other cops. You really have to be an impressive kind of awful to lose the support of your Thin Blue Line brothers and sisters.

But the police department in Brookside, Alabama has managed to do exactly that. For years, no one had heard of or cared that the town of Brookside even existed… and that possibly includes a percentage of the town's 1,253 inhabitants.

That all changed when a new sheriff rolled into town, so to speak. It wasn't a sheriff (because the county already had one) but a new police chief, Mike Jones. Where town leaders may have seen nothing more than a vacancy in its two-employee department, Jones saw opportunity. He soon turned Brookside into Nottingham, Alabama, patrolling nearby highways to hit drivers passing by the small town with multiple fines and fees. Officers also engaged in unnecessary towing of vehicles over minor traffic violations, and apparently made up laws to justify stops, seizures, and traffic citations.

Chief Jones was hired in 2018. From 2018 to 2020, fines and fees from traffic citations rose 600%. This windfall went directly to expanding the revenue stream. Chief Jones hired seven more officers, obtained two drug dogs, one MRAP, and the disdain of nearby law enforcement officials. He also incurred the wrath of an untold number of Alabama residents, who were soon making trips to Brookside to attend once-a-month traffic court sessions -- sessions that resulted in Brookside officers being forced to route traffic and oversee parking for this monthly influx of out-of-towners.

The county sheriff had already received several complaints about the traffic enforcement extortion being performed by Brookside officers, who often operated in unmarked vehicles while wearing uniforms that gave no indication which law enforcement agency employed them. A nearby district attorney called the town a "black hole" where drivers are subjected to rights violations, harassment, and bogus citations.

National exposure caused this real life Boss Hogg to resign his position as police chief. And the Brookside PD is experiencing something most law enforcement agencies never do: criticism from their supposed brothers in arms.

As a local lawmaker held a second town hall to focus on policing in the tiny town of Brookside, the stories kept coming. Many told about being stranded on the side of the road. People spoke of stolen money, seized guns, towed cars and lost jobs. People shared stories of getting 11 or even 12 tickets in one traffic stop.

And the sheriff of Jefferson County, Mark Pettway, encouraged them to fight the charges in court.

“If you have a ticket and have not gone to court yet,” he told the crowd, “when you do go to court, plead not guilty.”

Again, he said, “When you go to court, plead not guilty.”

When other cops are telling civilians how to beat the rap, you know you've fucked up. The fact that "multiple state agencies" are now investigating the department is another clue.

It's not just cars Brookside cops were after. They'd take any property they could get their hands on.

One man, Jordan Cole, said Brookside was investigating his brother for car theft but ended up seizing his family’s home and arresting his elderly and disabled mother on a charge of hindering prosecution.

“They made us leave and we were told that if we step foot back on the property, we would be arrested,” Cole said. He said his family had to find somewhere else to live and ended up renting a run-down mobile home.

So far, the small town's governance has yet to turn on the PD. In fact, the town's officials have refused to step down, offering their far-from-tacit approval of the abuses that went on under Chief Jones. Not that their endorsement of the PD matters at this point. The exposure of the PD as a group of thieves and thugs wandering nearby roads has been enough to result in the resignation of most of the police force. Brookside will have to adjust to being just another insignificant dot on the road map, rather than an insatiable predator willing to convert residents of other towns into ATMs the PD's band of thieves could hit again and again.

Is there a contest in the Senate to see who can propose the highest number of unconstitutional bills? You might think that the leader in any such contest would have to be a crazed populist like a Josh Hawley or a Ted Cruz, but it seems like Senator Amy Klobuchar is giving them a run for the money. Last summer, she released a bill to try to remove Section 230 for "medical misinformation," as declared by the Ministry of Speech Director of Health and Human Services. We already explained the very, very serious constitutional problems with such a bill.

And now she's back with a new bill, the NUDGE Act (Nudging Users to Drive Good Experiences on Social Media) which she announced by claiming it would "hold platforms accountable" for the amplification of "harmful content." You might already sense the 1st Amendment problems with that statement, but the actual text of the bill is worse.

In some ways, it's an improvement on the health misinformation bill, in that she's finally realized that for any bill to pass 1st Amendment scrutiny it needs to be "content neutral." But... it's not. It claims that it's taking a "nudge" approach -- popularized from Cass Sunstein and Richard Thaler's 2008 book of that name. But the whole point of "nudges" in that book is about small tweaks to programs that get people to make better decisions, not threats of government enforcement and regulations (which is what Klobuchar's bill does).

The bill starts out fine... ordering a study on "content-agnostic interventions" to be done by the National Science Foundation (NSF) and the National Academies of Sciences, Engineering, and Medicine (NASEM) to look for such content-agnostic interventions that would "reduce the harms of algorithmic amplification and social media addiction." And, sure, more research from independent and trusted parties sounds good -- and the NSF and NASEM generally are pretty credible and trustworthy. Perhaps they can turn up something useful, though historically, we've seen that academics and government bureaucrats who have no experience with how content moderation actually works, tend to come up with some ridiculously silly ideas for how to "fix" content moderation.

But, unfortunately, the bill goes beyond just the studies. Once the "initial study report" has been delivered, the bill then tries to force social media companies to adopt its recommendations, whether or not they'll work, or whether or not they're realistic. And... that is the unconstitutional part. You can call it "content-agnostic" all you want, but as soon as you're telling companies how they have to handle some aspect of the editorial discretion/content moderation on their sites, that's a 1st Amendment issue. A big one.

The bill requires the Commission it creates to start a rulemaking process which would release regulations for social media websites. The Commission would determine "how covered platforms should be grouped together" (?!?), then "determine which content-agnostic interventions identified in such report shall be applicable to each group of covered platforms..." and then (play the ominous music) "require each covered platform to implement and measure the impact of such content-agnostic interventions..."

And here's where anyone with even a tiny bit of trust and safety/content moderation experiences throws back their heads and laughs a hearty laugh.

Content moderation is an ever-evolving, constantly adapting and changing monster, and no matter what "interventions" you put in place, you know that you're immediately going to run into false positives and false negatives, and more edge cases than you can possibly imagine. You can't ask a bunch of bureaucrats to magically come up with the interventions that work. The people who are working on this stuff all day, every day are already trying out all sorts of ideas to improve their sites, and through constant experimentation, and adaptation, they keep gradually improving -- but it's a never-ending impossible task, and the idea that (1) government bureaucrats will magically get it right where companies have failed, and (2) a single mandate will work is beyond laughable (even excluding the constitutional concerns).

Also, the setup here seems totally disconnected to the realities of running a website. "Covered platforms" will be given 60 days to submit a plan to the Commission as to how they'll implement the mandated interventions, and the Commission will approve or disapprove of the plan. And any changes to the plan need to also be approved by the Commission. Some trust and safety teams make multiple changes to rules all the time. Imagine having to submit every such adjustment to a government Commission? This is the worst of the worst kind of government nonsense.

If companies fail to implement the plans, as the Commission likes, then the bill says the websites will be considered to have committed "unfair or deceptive acts or practices" enabling the FTC to go after them with potential fines.

The bill has other problems, but seems to just be based on a bunch of tropes and myths. It would only apply to sites that have 20 million active users (why that many? who the hell knows?), despite the fact that over and over again we've seen that laws that target companies by size create very weird and problematic side effects. The bill is nonsense, written by people who don't seem to understand how social media, content moderation, or the 1st Amendment work.

And, bizarrely, the bill might actually have some support because (astoundingly?!?) it has bipartisan backing. While it's a Klobuchar bill, it was introduced with Senator Cynthia Lummis from across the aisle. Lummis has, in the past, whined about social media companies "censoring" content she wanted to see (about Bitcoin?!?), but also was a co-sponsor of a bill that would require social media companies to disclose when the government pressures them to remove content, which is kinda funny because that's what this bill she's sponsoring would do.

I'm all for doing more credible research, so that's great. But the rest of this bill is just unconstitutional, unrealistic nonsense. Do better, Senator.