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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.

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If you're not familiar with the Free Law Project, you should be. It's a nonprofit that does everything it can to make access to court documents free. It all starts with the RECAP extension, which automatically saves copies of documents downloaded from PACER to CourtListener.com, giving people without PACER accounts and/or the funds (or patience!) to utilize the federal government's broken-down, overpriced system, access to federal court documents.

Unfortunately, the Free Law Project still has to play by PACER's exceedingly stupid rules, even when it's doing nothing more than automatically archiving documents accessed by PACER users with the RECAP extension enabled. The US Courts system continues to believe it needs to generate a profit, even when it does nothing more with millions in PACER fees than purchase new perks for the people who work for the court system or have the ability to actually visit federal courthouses.

That's not what PACER fees are supposed to be used for. They're supposed to be used to modernize the PACER system and eliminate barriers to online access -- the chief among those being fees. Instead, fees have increased while the front end of PACER -- along with its completely broken search function -- have mostly remained unchanged.

The US Courts PACER program has always been extremely mercenary, even when it's engaging in acts of temporary benevolence. Users can sometimes obtain fee waivers to lower the cost of accessing multiple documents. In this case, a researcher obtained a waiver and accessed thousands of court records. Great news for the beneficiaries of the Free Law Project's CourtListener site… or so you would think.

But that's not how this works, as the Free Law Project recently tweeted. [Threadreader version.] It had to delete thousands of court records this researcher legally obtained with a fee waiver because the federal court system says users with waivers can't do what they want with the data and documents they've obtained.

We scraped these records for a researcher using a fee waiver they got. According to the fee schedule, any content that you get while using such a waiver cannot be shared. This is the extremely absurd official policy:

If you can't read/see the embedded picture, it contains a portion of the restrictions on users who secure fee exemptions:

- the user receiving the exemption must agree to not sell the data obtained as a result and must not transfer any data obtained as the result of a fee exemption, unless expressly authorized by the court…

This means the Free Law Project downloads the content as instructed by the RECAP extension. Then it has to delete the content to comply with the user's fee exemption. Why does it have to do this? Because the federal court system says so. And why does the court system say users with fee exemptions can't share the documents with others? Well, I'm sure court reps would say several things in response to this question, but none would be as true as the answer once given to the Free Law Project:

Once, in a fit of honesty, a high-level member of the AO [Administrative Office] explained that the reason for this was because otherwise it would undermine the fee schedule.🤯

In other words, if researchers could share their raw data, the AO wouldn't make as much money off court data

PACER is here to provide access to court documents. But not without making some money first. Hence the numerous restrictions on seldom-granted fee waivers. As the Free Law Project points out, this is not how PACER is supposed to work.

Obviously, this contravenes the goal of PACER. It also makes reproducing research largely impossible.  

The documents were obtained legally. But the court system says it's against the rules for another party to continue to retain them. And now documents that could have increased the public's understanding of the court system have been vaporized because the government doesn't want the PACER money train even slightly derailed. And stupidity like this is only going to continue until PACER is deprived of its revenue stream with legislation making PACER access free.

The last time we wrote about Sarah Palin's defamation lawsuit against the NY Times was in 2017 when Judge Jed Rakoff was dismissing the case, noting that Palin had failed to show "actual malice," by the NY Times, which is the necessary standard under the seminal defamation case (also involving the NY Times), NY Times v. Sullivan. However, two years later, the appeals court ruled that Rakoff violated procedural rules in doing so, and reinstated the case. It's been three years since then and over the past few weeks an actual trial was held -- which is extraordinarily rare in defamation cases.

The "actual malice" standard is both extremely important and widely misunderstood. It does not mean that the speaker/publisher "really disliked" the subject or wanted to get them. It has a distinct meaning under the law, which is that that the publisher/speaker either knew it was false at the time of publication, or that they posted it with "reckless disregard" for whether it was true or false. And, again, people often misunderstand the "reckless disregard" part as well. It does not mean that they were simply careless about it. For there to be reckless disregard, it means that they had to have substantial doubts about the truth of the statement, but still published it.

In other words, for defamation of a public figure, you have to show that the publisher/speaker either knew what they were writing was false, or at least had strong reasons to believe it was false, and still went ahead with it. This is extremely important, because without it, public figures could (and frequently would) file nonsense lawsuits any time some small mistake was made in reporting on them -- and small mistakes happen all the time just by accident.

But, still, the Palin case went to trial and before the jury even came back, Judge Rakoff announced that, as a matter of law (which the judge gets to rule on) Palin had failed to show actual malice. The oddity here was that he did so while the jury was still deliberating, and allowing the jury to continue to do so. The next day, the jury came to the same conclusion, finding the NY Times not liable for defamation, as a matter of fact (juries decide matters of fact, judges decide matters of law -- and it's nice when the two agree).

It seems likely that Palin will appeal, in part because there are a contingent of folks in the extreme Trumpist camp -- including Supreme Court Justice Clarence Thomas and some of his close friends who have been campaigning over the past few years to over turn the "actual malice standard" found in the Sullivan case.

As many observers have noted, this case is probably not a very good test case for that question, but that doesn't mean Palin won't try to make it just such a test case -- and even if it's a weak case, we should be watching closely as any such case moves through the courts -- as they are, inherently, attacks on free speech. Weakening the actual malice standard would be a way for the powerful to more easily silence the powerless who speak up against them. The "actual malice" standard is a key element of strong free speech protections -- and attempts to weaken it are attacks on free speech.

Regular Techdirt readers will not be shocked when I say that DC Comics has a long and often ridiculous history when it comes to "protecting" its intellectual property. From trademark bullying over a barbeque joint, to trying to bully a Spanish soccer club for having a bat in its logo, up to waging a brief battle with the family of a dead child because they included the Superman logo on the headstone of the deceased: DC Comics will fight anything remotely like the use of its imagery or naming conventions.

And this isn't just check the box stuff, with lawyers playing pretend about having to defend certain IP or risk losing it. For instance, in the UK, DC Comics has taken a failed opposition over a Unilever trademark for "Wonder Mum" to the High Court, claiming the IPO got it wrong. By way of background, Unilever sought approval for a trademark for "Wonder Mum" with the UKIPO in 2021. DC Comics filed an opposition, noting that its trademark for Wonder Woman covered many of the same product types as in the application and then arguing that the marks were too similar. You can see the full decision by the IPO embedded below, but it sides with Unilever. With an incredibly over-tortured analysis as to how similar the marks are, the IPO concludes:

A mother or mum has had one or more children, either because she gave birth to them or has brought up children, performing the role of their mother or mum. I consider that to characterise the word ‘mum’ as a subset of the word ‘woman’ and, on this basis, to conclude that they are highly similar is syllogistic reasoning. A woman is a human adult who was born female or who identifies as female. The word ‘woman’ does not tell one anything about relationships with others. In contrast and by definition, the word ‘mum’ means that that person has a particular relationship with another, or others. Its conceptual impact is one of a particular relationship with children, whereas the conceptual impact of ‘woman’ is that it informs others as to the gender identity of an adult human. Whilst both nouns denote a female, many women have had no children, but all mums have had or brought up children.

It went on from there, with the IPO ultimately deciding that there was no likelihood of confusion. The opposition therefore failed. Again, this is pretty common sense stuff. Nothing in Unilever's use referenced Wonder Woman in any way at all. The idea here was to create a brand that celebrated hard-working moms. While Wonder Woman did apparently have a comic-child with Superman... you know what, I'm not going to even finish that stupid sentence because this is all very dumb.

And, yet, DC Comics wants to take that dumb now to the High Court.

DC is now appealing the decision at the High Court in London, claiming the IPO's ruling was 'perverse and unreasonable'.

Lawyers for the comic also argue that the cosmetics line would have damaging consequences and would allow 'anyone to release a Wonder Woman movie or comic', claiming 'Mum' is a subset of the word 'Woman'.

That, of course, is not how copyright or trademark laws work. The IPO granting a trademark on "Wonder Mum" doesn't suddenly make it legal for anyone to go make a Wonder Woman movie just by changing the name to Wonder Mum. That's beyond silly. Silly enough that Unilever's lawyers found the time to take a few shots of their own at DC Comics.

Denise McFarland, for Unilever, said there is no risk of the public muddling the two characters, particularly due to Wonder Woman's 'distinctive and unvarying features' - including her minimalistic' costume complete with high boots, a corset, and lasso and shield.

Ms McFarland added that, if DC's arguments about 'conceptual similarity' were correct, then using phases such as 'Wonder Aunt' and 'Wonder Niece' would also have to be banned.

Frankly, I wouldn't put it past DC Comics to try to do just that. But in the meantime, hopefully the High Court will slap DC Comics down yet again on this one.

Some senators are getting all angried up about proposed police reforms President Biden possibly might deliver as an executive order. Reporting earlier this month indicated Biden had something planned, but no one involved in breaking the news appeared to have any details.

President Joe Biden plans to sign executive actions on police reform as early as this month, three people familiar with the plans said, as his administration seeks to unilaterally jump-start an issue that is a top priority for a key constituency.

The executive actions would follow Biden’s uphill battle to advance voting rights legislation, and they could coincide with a similar effort by some Democratic lawmakers to revive the George Floyd Justice in Policing Act, which stalled on Capitol Hill after attempts to craft a bipartisan measure failed.

NBC spoke to two people "familiar with the discussions" and got nothing useful at all out of them.

The executive actions on policing are still being finalized, the sources said. They did not know how the actions would differ from steps the Justice Department took last year when it imposed new restrictions on chokeholds and “no-knock” warrants.

Really powerful reporting. Apparently a few senators have seen a draft of the proposed executive order and they've decided to peremptorily respond to something that may never happen or may be altered extensively before its issued. This is from Senator Chuck Grassley's site, which implies something horrible is coming and that he and other "Senate Republicans" aren't having any of it.

A group of Senate Republicans, led by Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa), today are expressing serious concern about a proposed executive order (EO) by the Biden Administration that would limit law enforcement access to nonlethal and lifesaving resources, and impose greater restrictions on federal grant dollars. The planned executive order comes amid a national surge in violent crime while the “defund the police” movement has eroded morale and curbed recruiting in police departments across the country.

Fortunately, the letter [PDF] these senators sent to the White House actually has a few details in it. Once again, we have no idea if, when, or in what state the executive order will arrive, but this is apparently what has been seen in the draft version.

Specifically, according to screenshots of a draft of such EO, the Administration would unilaterally impose the following new policies on law enforcement: restrictions to the 1033 program, expanding pattern and practice authority, planned expansion of 18 U.S.C § 242 prosecutions, and conditioning state and local law enforcement grants.

Leaked screenshots of the alleged EO can (barely) be seen here. But what's contained in these accusations (I guess??) doesn't indicate a wholesale disruption of law enforcement enterprise. In fact, most of this has already been done before, issued by presidents and rescinded by their successors or vice versa.

1033 restrictions have been tried before. They've never lasted. And those put in place are usually far from effective in preventing local law enforcement agencies from acquiring military gear. President Obama tried it about a human lifetime ago and that effort didn't even survive his term as Commander in Chief.

"Expanding pattern and practice authority" most likely means removing the handcuffs placed on federal investigations of local law enforcement agencies by President Trump. It's not an expansion. It's just a return to form for the DOJ, which has engaged in "pattern and practice" investigations for decades.

The same can be said for "expansion" of 18 USC 242 prosecutions. These "deprivation of rights under color of law" prosecutions have long been part of the DOJ's daily business. It's only in recent years -- under a very pro-law enforcement president -- that they've been dialed back. If anything, this will just be a regression to the mean, rather than the creation of some souped-up prosecutorial machine that goes after bad cops.

This all dovetails into some cherry-picked stats stripped of context and served up as a justification for allowing cops to do whatever they want and acquire whatever they want.

Such potential restrictions on the 1033 program would come at a time when law enforcement needs our support more than ever. We have spoken about the unprecedented 30-percent spike in murders that began in the summer of 2020. It continues to this day. In 2021, police officers recorded the highest number of on-duty deaths on record. According to the Fraternal Order of Police, 63 officers were murdered and 346 officers were shot. They also reported ambush-style attacks on law enforcement officers spiked 115 percent in 2021. Police officers will face a grim reality if this EO is enacted and their lifesaving equipment is restricted from them. Violent crime will continue to skyrocket when police officers are unable to stop these crimes and save innocent lives. We cannot understand why any elected official would want to stop law enforcement from safely doing their jobs other than to be able to tell their base of voters they are defunding the police.

There is no effort to defund local law enforcement agencies contained in this executive order. First of all, the federal government simply cannot do that. Funding is a completely local function. It can deny access to federal grants, but this is something that almost never happens. Grants earmarked for law enforcement agencies receive almost zero oversight, much like the 1033 program the Biden Administration may or may not alter. Grassley also appears to have forgotten the previous president threatened to withhold federal grants all the time if cities or their law enforcement agencies angered him.

A spike is not a trend and the reason more officers are dying than ever is because of COVID. And it will continue to get worse for officers since so many of them are involved in fighting vaccine mandates and other COVID-related safety measures. And if agencies are having trouble re-staffing, they might want to take long looks in the mirror to understand why that might be. Spending decades destroying trust and community relationships tends to cause recruitment problems. Playing the eternal victim while simultaneously rejecting common sense safety measures during a pandemic isn't going to win the hearts and minds of anyone worth hiring.

The letter wraps up with this incredible paragraph:

These hard-left policies are extremely ill-advised, dangerous to Americans, and would only further demoralize law enforcement. Along with the alarming rise in violence against officers, police departments continue to report low morale among officers that is directly related to the dangerous “defund the police” rhetoric. This is careless rhetoric that has lasting consequences to the men and women who risk their lives every day to keep our communities safe, and the EO’s policies are simply an extension of that rhetoric.

These are far from "hard-left" policies. The DOJ has engaged in plenty of what's being proposed while working for right-wing administrations. There's nothing about this that's dangerous to Americans. The only threat it possibly poses is to bad cops. Those are the people these senators are defending by calling any small change to current policies (or reversions to old policies) permanently damaging to law enforcement. To be sure, law enforcement is in mid-crisis. But it's not going to emerge from that crisis using a blend of hands-off oversight and zero accountability. These senators are just shilling for the worst of the worst while pretending it's nothing more than a left-wing power grab designed to grab the attention of Biden's voter base.

More than a year and a half ago we were joined on the podcast by Riana Pfefferkorn, then the Associate Director of Surveillance and Cybersecurity at the Stanford Center for Internet and Society and now a research fellow at the Stanford Internet Observatory, to discuss the disastrous EARN IT Act. As you probably know, EARN IT is back, and this week, Riana joins us once again to discuss why it hasn't gotten any better — and might in fact have gotten worse.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

For years now, wireless carriers have struggled to make fifth generation wireless (5G) interesting to consumers. While the technology does provide faster, lower-latency connectivity, that's more of an evolution than any kind of revolution. But in a bid to excite consumers (and justify high prices), wireless carriers have been pouring it on a little thick for years, trying to insist that 5G will somehow revolutionize the future, cure cancer, solve climate change, and generally turn America's urban landscape into the smart cities of tomorrow. And don't get me started on the "race to 5G."

During the Super Bowl, Verizon used Jim Carrey and T-Mobile hired Dolly Parton and Miley Cyrus to try and make 5G sexy, but most consumers still generally couldn't care any less about 5G:

"5G service has yet to really resonate with consumers, said Roger Entner, founder of Recon Analytics. Entner notes that out of monthly surveys of 3,000 consumers, 5G service ranks 5th out of 9 categories for the most important reason to pick a new wireless provider, and 9th out of 9 as a reason to leave a provider. "Just saying my G is bigger than your G — consumers don’t give a hoot," Entner told Axios. "And that’s because we really haven’t seen these must-have applications that are reliant on 5G."

On the one hand, wireless providers want to use 5G to target cable providers by offering home broadband services over 5G. The problem: these aren't companies that have ever been all that interested in competing on price. And wireless still tends to come with odd caveats that make it an inferior alternative to technologies like fiber or even modern cable.

Most consumer surveys show that consumers generally want two things from wireless providers: more reliable coverage and lower prices. The industry isn't interested in providing the second one (and thanks to telecom consolidation that's not likely to change anytime soon). And 5G range in the U.S., has been hindered by a lack of "middle band" spectrum in the U.S., which, unlike high band spectrum (fast speeds, short distances), and low-band (good range, slower speeds), provides both decent speeds at a decent range. The lack of said spectrum has meant that U.S. 5G deployments are generally slower than most overseas deployments, creating an even bigger chasm between reality and hype.

Desperate to make 5G more interesting than it is, wireless carriers have taken to over-promoting what the technology can actually do. This almost always involves taking something you could theoretically already do over 4G or WIFI (like giving someone a tattoo on the other side of the country! or using special effects at concerts!) then pretending it's only made possible thanks to the miracle of 5G. But time and time again, consumers have made it clear they're not buying it. It's even resulted in a 40% jump since 2019 in inter-carrier disputes over misleading ads, given even they know they're full of shit on the subject.

This won't change much for NSO Group, but at least it helps the Israeli Police rehab its image a bit. An "initial investigation" has (mostly) cleared the Israeli police of wrongdoing in one of the latest surveillance scandals tied to NSO's malware.

The Israeli broadcaster Channel 12 said a police investigation ordered by Israel’s public security minister, Omer Barlev, had concluded that of 26 individuals named in recent reports as having been targeted using NSO Group’s Pegasus software, three named individuals were targeted, with the police successfully hacking only one of the phones.

The investigation apparently is still ongoing, so these early positive results might be undone after further examination. Fortunately, the Israeli police aren't investigating themselves. Instead, the federal police agency is being scrutinized by officers from Israeli intelligence agencies Shin Bet and Mossad.

This doesn't mean Israeli police haven't targeted Israeli citizens with NSO hacking tools. It just means that what's been discovered so far has been lawful, contradicting earlier reports that suggested targets were subjected to attempted (or successful) hacking without the proper paperwork in hand.

Of course, earlier reports also said the police were able to do this by exploiting a "loophole" in the law. And that means the spirit of the law can be violated without anyone engaging in anything that's actually illegal. This is how state-ordained surveillance programs work: by playing right up to the edges of what the law permits.

But that doesn't mean nothing illegal happened.

The only possible illegal hacking was regarding Shlomo Filber, a former director-general of the Communications Ministry and longtime confidant of Netanyahu, according to Hebrew-language television reports.

The Israeli police are apparently hoping that this illegal hacking will be excused because law enforcement never accessed or made use of the data and communications obtained with the use of phone hacking tools. But the police have admitted investigators went beyond what was authorized in the court order.

Police brass told justice officials that the data was downloaded accidentally and was never given to investigators in the Netanyahu cases.

This possibly illegal hacking was discovered during the course of another investigation entirely unrelated to the current investigation about police use of NSO phone exploits.

Filber’s phone was reportedly accessed in 2017, and had the entirety of its content drained using unnamed spyware. The discovery that Filber’s phone had been targeted was made in the course of an unrelated investigation, ordered by the attorney general, into alleged police abuse of the controversial NSO Group’s Pegasus software, though a different technology was used to access Filber’s phone.

NSO Group, for its part, has decided it's time to start suing. Calcalist -- which has broken news of NSO-related hacking several times -- released a list of alleged Israeli targets of NSO malware. This report -- along with a follow-up by Calcalist -- has triggered legal threats from NSO.

Calcalist on Monday published specific, but unsourced, allegations of hacking against 26 targets by police. The bombshell report said NSO Group’s Pegasus program was deployed against senior government officials, mayors, activist leaders, journalists and former prime minister Benjamin Netanyahu’s family members and advisers, all without judicial authority or oversight.

To be clear, NSO doesn't deny the listed names were targets of NSO malware. Instead, it is taking issue with Calcalist's claim that NSO provided customers with malware deployment tools that could be configured to prevent the creation of data logs during deployment and use, thus preventing the creation of digital footprints that could indicate the use of NSO's Pegasus spyware. NSO denied this allegation in a letter threatening legal action, stating that it never provided customers with systems that offered plausible deniability as undocumented feature.

In response to Thursday’s report, NSO wrote to Calcalist that the relevant systems “include full documentation of the actions performed in them,” and that the records are kept for legal purposes and to prevent tampering with evidence. It further denied the newspaper report’s claim that it had sold client software that does not include the documentation feature or only in a limited way.

We'll see what becomes of this legal threat. NSO is already defending itself against two lawsuits brought by US tech companies. It may not be wise to press forward with one of its own and roll the dice on discovery for a third time. Given the nature of NSO and the those it has chosen to sell to, it's not all that unreasonable to believe it may have offered cover-up solutions to certain customers at a comfortable markup.