We've made it pretty clear by now that despite some promising gigabit fiber deployments, the U.S. broadband industry is actually getting less competitive than ever in countless markets nationwide. That's occurring in part because telcos like Verizon have shifted their focus toward slinging video ads at Millennials (poorly), instead of upgrading antiquated DSL lines in countless states. As a result, the nation's two dominant cable providers (Charter Spectrum, Comcast) are securing a growing monopoly over broadband, especially at faster speeds.

The net result is less competition, but more of everything everybody dislikes about American broadband: mindless rate hikes, usage caps, net neutrality violations, terrible customer service, and an obvious, active disdain for the captive customers these companies "serve."

Of course there's many (most notably the broadband industry) that try and argue these problems aren't that big of a deal because fifth-generation (5G) wireless will soon arrive, basking the country in ubiquitous connectivity and broadband competition. That's certainly the story the broadband industry has been telling the FCC as the agency conducts its annual review of U.S. broadband deployment, even though this ignores that wireless isn't, and won't be for years, a suitable-replacement for fixed-line broadband:

"AT&T and Verizon are trying to convince the Federal Communications Commission that mobile broadband is good enough for Internet users who don't have access to fiber or cable services. The carriers made this claim despite the data usage and speed limitations of mobile services. In the mobile market, even "unlimited" plans can be throttled to unusable speeds after a customer uses just 25GB or so a month. Mobile carriers impose even stricter limits on phone hotspots, making it difficult to use mobile services across multiple devices in the home.

Some other investment-centric websites have tried to argue that 5G wireless will bring so much additional competition to bear on the broadband market that net neutrality (violations of which are just a symptom of limited competition) is no longer relevant:

"AT&T says it will launch its first mobile 5G network by the end of this year. T-Mobile aims for a nationwide 5G network in less than two years, with speeds up to 4 Gbps. All of it means more competition for high-speed internet at home. And that's why the case for "net neutrality" just collapsed — not that there ever was a good case for it to begin with."

You'll see this claim a lot from carriers as 5G rolls out, but it's bunk.

While 5G wireless broadband will certainly be useful, it's not going to magically fix an industry that's been broken for decades. As noted above, wireless connections are routinely capped, throttled, and face a universe of bizarre restrictions, like the industry's recent decision to charge you more money if you want HD streams to work as intended. "Unlimited" connections are routinely shown to be very limited (as California firefighters just found out), especially in more rural markets where limited investment results in many users getting kicked off the network for using often-ambiguous amounts of bandwidth.

And while ideally 5G wireless updates should make wireless networks more resilient with greater capacity, there's an underlying reason that pricing and arbitrary restrictions aren't going away anytime soon. Namely, the monopoly companies like CenturyLink, Verizon, and AT&T hold over the special access market.

Also known as the business data services (BDS) market, this business segment connects everything from cellular towers to ATMs, and because there's little real competition there either, the companies have no incentive to seriously lower prices. Worse, Ajit Pai's FCC has, like all other sector issues, been more than happy to turn a blind eye to the problem. And if you don't fix the monopoly problems that plague the cell towers and transit lines at the heart of the wireless sector, you aren't likely to see better rates, broader deployment, and more competition on the retail end anytime soon.

Combine this with the biggest carriers' stranglehold over wireless spectrum, the death of net neutrality, and the regulatory capture these companies enjoy in countless states, and you should start to see why 5G is a good, modest improvement in technology, but isn't some mystical panacea for the deep-rooted problems that plague the sector.

The FBI uses the "no fly" list as leverage. What should be used to keep threats to national security off airplanes is being used to turn people into informants. If someone travels to a country the US government views with suspicion, citizens and legal residents are often approached by FBI agents who use the threat of revoking flying privileges to obtain new info sources.

DOJ policy expressly forbids this sort of behavior, but the FBI doesn't care. It tells the CBP to keep an eye on travelers who visit or originate from certain countries, accost them in the airport, and subject them to invasive searches/interrogations with an eye on converting them to unofficial G-men.

Earlier this year, the Second Circuit Appeals Court said federal agents could be sued for tossing three men on the "no fly" list for refusing to become informants. The Ninth Circuit Appeals Court is saying the same thing. There are procedural differences between the two cases, but in both, the plaintiffs have been allowed to move forward with their lawsuits.

The case [PDF] from the Ninth Circuit deals with the FBI's coercive tactics. An American citizen from Oregon dealt with this after flying to Sudan:

In April 2010, while still in Sudan, Fikre was approached by two FBI agents who questioned him about his association with the as-Saber Mosque in Portland and his commercial finances. The agents told Fikre that he had been placed on the No Fly List, which identifies individuals who are prohibited from flying into, out of, or over the United States and Canadian airspace by commercial airlines. The FBI agents offered to remove Fikre from the list if he became a government informant. Fikre refused.

Then things got a whole lot worse for Yonas Fikre. He went from Sudan to the United Arab Emirates later that year where he was seized, imprisoned, and tortured by UAE police. Questioning centered on the Portland mosque and his captors told him the FBI had requested his detention. Once released, Fikre was trapped overseas. Unable to return to the US because of his no fly list status, Fikre sought refuge in Sweden.

Fikre appealed his no fly status, but the DHS refused to confirm or deny his placement on the list. Following the government's loss in another no fly list lawsuit, the DHS finally confirmed Fikre was on the list but refused to reinstate his flying privileges. The DHS claimed Fikre was a "threat to civil aviation or national security," but refused to provide further details as to why the agency believed this. Sweden's government ultimately expelled him from the country (presumably because the US government had pretty much declared Fikre a terrorist) and his wife left him while he spent a half-decade overseas trying to find a way to travel back home.

Fikre sued the FBI for a variety of Constitutional violations, asking for damages and an admission/declaration from the government that he should never have been placed on the no fly list. The government responded by trying to dodge the lawsuit altogether. It arbitrarily removed Fikre from the list and said that was enough to make all of his claims moot. The lower court agreed, deciding the attempt to dodge the lawsuit was the equivalent of making Fikre whole for the half-decade of overseas screwing he received because he refused to be an FBI informant.

The Appeals Court disagrees with this assessment of the government's attempted mooting. As Fikre points out, there's nothing preventing the FBI from putting him back on the no fly list once the lawsuit has been dismissed. The government points to no reason or underlying policy for Fikre's removal, much less makes any declaration it no longer considers him a national security threat.

[T]he FBI’s decision to restore Fikre’s flying privileges is an individualized determination untethered to any explanation or change in policy, much less an abiding change in policy. The DHS re-evaluated Fikre’s presence on the No Fly List in 2013 and 2015 pursuant to its TRIP procedure and determined that no adjustments to his status were necessary. Indeed, the DHS affirmed as late as March 2015—after it had amended TRIP to conform to the decision in Latif—that Fikre posed “a threat to civil aviation or national security” and it refused to remove him from the No Fly List. Yet it did just that fourteen months later, without explanation or any announced change in policy. [...] This record suggests that Fikre’s removal from the No Fly List was more likely an exercise of discretion than a decision arising from a broad change in agency policy or procedure.

The court grants the government some good faith it hasn't earned by saying it doesn't believe it removed Fikre from the list simply to moot the lawsuit, but notes it has done nothing to assure Fikre or the court that his removal will be permanent or has anything to do with the national security machinations used to strip his flying privileges.

The notice filed by the government averred only that “counsel recently was advised by the Terrorist Screening Center that [Fikre] has been removed from the No Fly List.” Absent an acknowledgment by the government that its investigation revealed Fikre did not belong on the list, and that he will not be returned to the list based on the currently available evidence, Fikre remains, in his own words, “stigmatiz[ed] . . . as a known or suspected terrorist and as an individual who represents a threat of engaging in or conducting a violent act of terrorism and who is operationally capable of doing so.” Because acquaintances, business associates, and perhaps even family members are likely to persist in shunning or avoiding him despite his renewed ability to travel, it is plain that vindication in this action would have actual and palpable consequences for Fikre.

Nothing will be mooted. Fikre can continue suing the government for violating his rights and hopefully obtain a full -- and honest -- declaration that he was never a threat and will not pose one in the future. Short of a big win by Fikre, it's tough to see this litigation resulting in the FBI dropping its informal policy of pressuring people into becoming informants by threatening to strand them in foreign countries. The DOJ's policies aren't worth the paper they're printed on -- not if the FBI continues to use the no fly list as leverage.

Longtime readers here at Techdirt will be familiar with Monster Energy's trademark bullying ways, but even relative newcomers will have had the opportunity to witness what has become an impressive losing streak in trademark disputes. This comes with the bullying territory, where the quick trigger finger on the threat letters and oppositions means that many of them are going to be losers. Still, one would think the sheer volume of these cases would mean quite a bit of billable hours going to the legal team that certainly could be spent better elsewhere.

But the losses keep coming. Monster Energy recently lost an opposition filed by the NBA for the Toronto Raptors team imagery in Singapore, of all places.

Monster Energy argued that the Toronto Raptors logo is too similar to its “claw device mark”, and consumers would likely confuse Monster’s three vertical slashes with the NBA Toronto Raptors’ circular logo of a basketball with three horizontal raptor claw marks out of it.

Here are the images Monster Energy said would cause confusion in the public.

Confused yet? No, of course you're not. Now, Monster Energy and the Toronto Raptors both have a lengthy roster of variations of these images and branding, but absolutely none of them come remotely close to resembling one another and, even any of them did, there is still no chance for actual confusion in the public about any of this. Fortunately, the adjudicator of the opposition agreed.

The adjudicator presiding over the case said: “[The] mere similarity in the subject matter of the competing marks (for example the three-pronged claw-shaped devices with jagged edges) was not sufficient to establish visual similarity for the purposes of opposing the registration of a trademark.” The adjudicator went on to add that consumer knowledge of both brands would mean that confusion would not occur.

I get that bullies are gonna bully, but I still fail to see how any of this has been productive for Monster Energy as of late.

You can violate Constitutional rights and still dodge liability. You just have to do it in a way that doesn't immediately summon precedential cases on point. That's the beauty of qualified immunity, the doctrine the Supreme Court decided was needed because expecting law enforcement to operate within the confines of the Constitution is just too much to ask.

Fairfield County, Ohio's SCRAP (Street Crime Reduction and Apprehension Program) unit plays fast and loose with the Constitution -- and with the county's apparent blessing. A case examined by the Sixth Circuit Court of Appeals details a search the SCRAP chose not to call a search that resulted in the discovery of marijuana plants -- and further contraband once a warrant was secured. The defendants -- Neil Morgan and Anita Graf -- asked for the evidence to be suppressed. They argued the initial "knock and talk" violated the Fourth Amendment, tainting the more thorough search that followed.

Acting on a tip, the county's SCRAP unit went to the defendants' residence and basically surrounded it, placing two officers approximately five feet from the house in the backyard. It was from this vantage point the marijuana plants on the second floor balcony were spotted -- something not visible to those approaching the house from more "public" directions. The court agreed and vacated their sentences. This lawsuit against the officers and the county ensued.

The Sixth Circuit Court notes [PDF] this knock-and-talk tactic -- surrounding the house prior to knocking -- clearly violated the Fourth Amendment.

Under that commonsense approach, the area five-to-seven feet from Morgan’s and Graf’s home was within the home’s curtilage. Even when the borders are not clearly marked, it is “easily understood from our daily experience” that an arm’s-length from one’s house is a “classic exemplar of an area adjacent to the home and ‘to which the activity of home life extends.’” The right to be free of unwarranted search and seizure “would be of little practical value if the State’s agents could stand in a . . . side garden and trawl for evidence with impunity.”And the right to privacy of the home at the very core of the Fourth Amendment “would be significantly diminished” if the police—unable to enter the house—could walk around the house and observe one’s most intimate and private moments through the windows.

But not only were the SCRAP unit members positioned on the sides of the house, they were in the backyard, too. Indeed the backyard is where they discovered the marijuana plants, the cause of the injuries alleged by Morgan and Graf. And “the law seems relatively unambiguous that a backyard abutting the home constitutes curtilage and receives constitutional protection.” Daughenbaugh, 150 F.3d at 603; see also United States v. Jenkins, 124 F.3d 768, 773 (6th Cir. 1997). That is true especially when, as here, there are no neighbors behind the house and the backyard is not visible from the road.

The court points out there's nothing ambiguous about this particular violation in this jurisdiction: backyards and standing only a few feet from a house are both intrusions that must be supported by something more than the officers had when they approached the residence. The SCRAP team had no warrant, but it went about its business as though it had this permission slip to bypass Fourth Amendment protections.

The county argued no warrant was needed, citing officer safety and exigent circumstances. The court says both assertions are ridiculous.

Instead of showing a particular and immediate risk, the county argues that concern for officer safety generally allows police to enter the curtilage and form a perimeter. Yet rather than citing a case supporting that position, the county argues that drugs and guns often go together. Maybe. But that is no more than a general statement of correlation; and generic possibilities of danger cannot overcome the required particularized showing of a risk of immediate harm. See id. at 961. But, even if the officers knew that Morgan had a weapon, “[t]he mere presence of firearms does not create exigent circumstances.” United States v. Johnson, 22 F.3d 674, 680 (6th Cir. 1994).

The court then goes further: to apply the county's "officer safety" theory, the whole Fourth Amendment would need to be thrown out.

What is more, the county’s position would create an exception that would swallow the rule. It might be safer for the police to enter the curtilage to form a perimeter; it would certainly be easier to stop someone who might flee by establishing some sort of barrier to that flight. Indeed, many (if not most) Fourth Amendment violations would benefit the police in some way: It could be safer for police without a warrant to kick in the door in the middle of the night rather than ring the doorbell during the day, and peering through everyone’s windows might be a more effective way to find out who is cooking methamphetamine (or engaging in any illegal behavior, for that matter). But the Bill of Rights exists to protect people from the power of the government, not to aid the government. Adopting defendants’ position would turn that principle on its head.

The county also tried to argue the search wasn't a search because the officers said it was a "knock and talk," despite the presence of officers inside the curtilage. No good, says the Sixth Circuit.

The subjective intent of officers is irrelevant if a search is otherwise objectively reasonable, but subjective intent cannot make reasonable an otherwise unreasonable intrusion onto a constitutionally protected area.

The court says the SCRAP unit had no warrant, no exigent circumstances, and no other plausible warrant exception to offer. Open and shut for qualified immunity, you would think, but apparently no one violated rights in this particular fashion previously, so…

Despite these long-settled standards, one case from this circuit, although incorrectly decided, requires that we grant qualified immunity. That case, Turk v. Comerford, decided within a month of the ‘knock and talk’ in this case, found that the law was not clearly settled against a factual background that was, in every material way, the same as here.

Oh wait. Someone did violate rights this way. Something directly on point. The court settled the law, right? Clearly established going forward and all that? Nope. The defendants lose because the court failed to do its job twice.

Although Hardesty and Turk are outliers, Morgan and Graf cannot overcome their burden of showing that the law was clearly established at the time of the search in this case. In those two cases, this court should have reaffirmed long-settled Fourth Amendment principles. Cf. Rogers v. Pendleton, 249 F.3d 279, 289–90 (4th Cir. 2001) (denying qualified immunity and reasoning that allowing access to curtilage based on reasonable suspicion would “eviscerate the principle of Oliver and Dunn that the curtilage is entitled to the same level of Fourth Amendment protection as the home itself”). But it did not.

So, because the court screwed up, the officers get their qualified immunity -- despite "knock and talk" cases directly on point being (mis)handled in this circuit. The county, however, does not get off so easily.

It is uncontested that the county’s policy required officers to enter “onto the back” of any property during every ‘knock and talk.’ And as acknowledged by the sheriff and members of the SCRAP unit, that policy did not give any leeway for the officers to consider the constitutional limits that they might face. The SCRAP unit did not weigh the characteristics of properties to determine what parts of the properties were curtilage (and thus off limits). The policy gave no weight to the core value of the Fourth Amendment—one’s right to retreat into his or her home “and there be free from unreasonable government intrusion.” Collins, 138 S. Ct. at 1670 (quoting Jardines, 569 U.S. at 6). Quite the opposite: the policy commanded that the SCRAP unit ignore those limits. It was not one employee’s interpretation of a policy that caused Morgan’s and Graf’s injuries—the policy was carried out precisely as it was articulated. And so, because the county’s policy itself was the cause of Morgan’s and Graf’s injury, the county should be held liable under Monell.

Third time's the charm. The next litigant will be able to move forward with their case should officers decide putting someone in the backyard is justified during a knock-and-talk. But for the three previous sets of plaintiffs, the law managed to remain "unsettled" until just now, even with blatant Fourth Amendment violations the county will have to answer for in court.

A major insurance company recently announced that it would offer discounts on life insurance to customers who wear activity trackers and log data showing they live a healthy lifestyle. This understandably freaked out some people, but there are interesting aspects to the idea as well. There's plenty to consider, so this week regular hosts Mike, Hersh and Dennis discuss whether this is an exciting innovation, a worrying expansion of surveillance culture, or both.

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We've highlighted a few times now, just how problematic the GDPR is. This is not because we don't care about privacy -- we do very much. We just think that the GDPR's approach is not a very good one with a lot more downsides than upsides -- and, it's unlikely to do very much to actually protect your privacy. For example, we just wrote about the GDPR being used (successfully!) to try to erase a public court docket.

But not only do we think that the GDPR doesn't actually protect your privacy, it might actually put it at much greater risk. Take the story of Jean Yang, who noted that someone hacked her Spotify account and then, thanks to GDPR requirements, was able to download her entire Spotify history.

That's because, under the GDPR, platforms are supposed to make all of the data they have on you easily downloadable. The theory is that this will help you understand what a company has on you (and, potentially, to request certain data be deleted). But, it also means that should anyone else get access to your account, they could access an awful lot of important and/or personal data. Your Spotify interactions might not seem like that big of a deal, but plenty of other services could expose much more sensitive data (and, who knows, there are situations where your Spotify data might be quite sensitive as well).

As Jean notes in a later tweet, this kind of thing could really come back to bite other services, such as Lyft or Uber. She jokes: "Would be pretty bad to get hacked and kidnapped in the same day."

There are possible technological solutions that could help (again, as Jean suggests), such as using multi-factor authentication to access your own data (one-time passwords, Yubikey, etc), but it's telling that few companies (or regulators!) have really thought about that, because that vector of attack probably hasn't occurred to many people. But, it probably will now.

This is, of course, yet another good example of the unintended consequences of regulating technology, even with good intentions. Very little thought has been put into the second and third order effects. Instead, you have a bunch of policymakers who think "platforms collecting too much data is bad, thus, we have to let people check on their own data." It never occurs to them that this now creates a brand new route to accessing potentially valuable, sensitive and private data.

And, as an end result, a regulation designed to increase our privacy... could sometimes have the exact opposite effect.

It's like the scene in the Naked Gun, where Leslie Nielsen stands outside the exploding fireworks factory telling everyone, "Nothing to see here. Please disperse." Such is the decision by the district court dismissing the EFF's lawsuit challenging the constitutionality of FOSTA.

Since FOSTA's passage, many have largely been reacting in terror at its vague, yet broad, language threatening civil and even criminal liability. It has led to the censorship of enormous swathes of legitimate speech as platforms seek to reduce this new risk. But in a decision Monday dismissing the case for lack of standing the district court basically declared that it couldn't understand what everyone was so worked up over.

Standing has to do with who is entitled to file a lawsuit. Ordinarily you have to have suffered an actual injury, although in certain situations, such as constitutional challenges, parties can have standing if it is likely that they will suffer an injury. After all, we wouldn't want people to have to expend resources needlessly in the effort to comply with an unconstitutional law, or have to risk prosecution in order to have its constitutionality tested before the courts. But the injury risk still needs to be reasonably likely.

Imminence, the element most relevant here, is concededly a somewhat elastic concept. Nevertheless, imminence "cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes – that the injury is certainly impending." […] The concept of imminence has been particularly important in the context of pre-enforcement challenges. The Supreme Court has held that plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement. A credible threat of prosecution exists when the challenged law is aimed directly at plaintiffs, who, if their interpretation of the statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution. Thus, fear of prosecution cannot be "imaginary or wholly speculative," and allegations of a subjective "chill" are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm. [p. 15-16]

Yet here the court decided it was not.

It would be great if it were right, and no one had anything to fear. But while the court essentially declared the fears contorting the availability of online speech to be much ado about nothing, it didn't do so in a way that would effectively allay those fears.

As the court ran through its analysis of the standing of each plaintiff, it struggled to see how what they proposed to do, and how what they feared would be chilled by the law, was targeted by the law.

[P]laintiffs say, FOSTA criminalizes "anything that promotes or facilitates prostitution, and not a specific crime." This is particularly problematic because prostitution is an area where there has been significant advocacy, both by government entities and by private citizens. As plaintiffs see it, that advocacy places them in crosshairs. In pressing this argument, however, plaintiffs ignore key textual indications that make clear that FOSTA targets specific acts of illegal prostitution not the abstract topic of prostitution or sex work. [p. 22]

The above is some of what the court had to say about the lead plaintiff Woodhull Freedom Foundation. It concluded similarly for plaintiff Human Rights Watch. For plaintiff Jesse Maley a/k/a Alex Andrews, the creator and operator of an actual platform, ratethatrescue.org, it similarly minimized her concerns.

Under Maley's reasoning, because providing housing or childcare services to sex workers "make[s] sex work easier," Rate That Rescue could be said to promote or facilitate prostitution. For this reason, Maley fears that amendments to Section 230 - which clarify that immunity does not extend to conduct made unlawful by Section 2421A - could expose her to prosecution for the speech of third parties on Rate That Rescue. […] Her concerns, however, are unwarranted. Put simply, Maley has failed to show that Section 230 amendments expose her to a credible threat of prosecution. That is so because Maley, on the current record, lacks the mens rea to violate any of the provisions specified in Section 230(c)(5). […] In managing Rate That Rescue, Maley cannot possibly be said to act "with the intent to promote or facilitate the prostitution of another person" in violation of Section 2421A. Maley's declaration concedes as much, repeatedly expressing concern that law enforcement could determine that "the user-generated content on Rate That Rescue promotes or facilitates prostitution." But those formulations lack the critical mens rea element of the Section 2421A offense. Indeed, Maley herself does not even assert that law enforcement could credibly contend that, in managing Rate That Rescue, she acts "with the intent to promote or facilitate" the prostitution of another person. Of course, the mere promotion or facilitation of prostitution is not enough: Maley must intend that her conduct produce the specific result. [p. 25-26]

It's a statutory parsing that would be a lot more assuring if it didn't ignore another perfectly plausible read of the statute. Of course it's ridiculous to say that Maley intended to promote prostitution. But that's not what the statute forbids. In a subsequent passage the court dismisses the argument that FOSTA's amendments to 18 U.S.C. Sec. 1591 create any additional legal risk for platforms. But the amendments expand the prohibition against the "participation in a venture" to engage in sex trafficking to include "knowingly assisting, supporting, or facilitating" such a venture. This language suggests that liability does not require knowledge of a specific act of sex trafficking. Instead, merely providing services to sex traffickers – even ones unsuccessful in their sex trafficking venture – would seem to trigger liability. In other words, knowledge seems to hinge not on knowledge of a sex trafficking act but on knowledge of a sex trafficking venture (including one that may even be victimless), yet both the statute and the court are silent as to how much, or how little, a platform would need to actually know in order to have "knowledge" for purposes of the statute. This vagueness is what is so chilling to them, because it forces them to guess conservatively. But the court provides little relief, and in dismissing the case denies the opportunity to even attempt to gain any.

Also, while these plaintiffs were suing because they feared prospective injury, plaintiff Eric Koszyk has already experienced a tangible injury directly traceable to the changes in the law wrought by FOSTA. He was a massage therapist who relied on Craigslist to advertise his services. In the wake of FOSTA, Craigslist shut down its Therapeutic Services section, thus limiting his ability to find customers. Without FOSTA (which would result if it were declared unconstitutional) it would seem that the shutdown decision could be reversed. But to the court this result would be too speculative:

Unfortunately for Koszyk, he cannot establish redressability under the relevant precedents. That is so because Koszyk has not established that a victory "will likely alleviate the particularized injury alleged." It is well established that a plaintiff lacks standing when the "redress for its injury depends entirely on the occurrence of some other, future event made no more likely by its victory in court." When, as here, a third party can exercise "broad and legitimate discretion the courts cannot presume either to control or to predict," a court is generally unable to redress the alleged injury and, accordingly, standing is found wanting. [p. 27-28]

This is insanity. Of course the court can't force Craigslist to re-open its Therapeutic Services section. But it can eliminate the reason for its closure and at least make the decision to re-open it possible. As long as FOSTA remains on the books it eliminates that possibility, and that's an injury.

It didn't go any better for the Internet Archive's standing as a plaintiff. As a platform that handles a massive amount of third party created content, for which review would be impossible, it worried it could nonetheless be caught in FOSTA's net. Don't worry about it, said the court.

Although the Internet Archive represents that it does not intend to promote sex trafficking or prostitution, it believes that the Section 230 amendments 2 and the ambiguity of their scope may expose it to liability. Once again, however, there are no facts in the record supporting an inference of the mens rea standard necessary to peel back Section 230's protections. The Internet Archive's practice of sweeping up vast amounts of content from the web for indefinite storage, and its attested practical inability to review the legality of that third-party content, mean that that entity simply cannot meet the stringent mans rea standard required for liability under Sections 2421A, 1591, or 1595. [p. 28]

In a way, that sounds great. Don't know what's in all that user content? No problem. But the problem is, inevitably platforms are going to have some knowledge of what's in all the user content. In fact, if Section 230 is going to work as intended to encourage platform moderation of content they are going to have to know. And, thanks to this decision, this knowledge remains a terrifying prospect for all.

It is likely that EFF will continue to press forward with this case, so it is not the final word on FOSTA's constitutionality, but it is an unfortunate start.

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The latest in this ridiculous political fight over the claimed, but not proven, "political bias" found in search results and social media is that Louisiana's Attorney General says we should break up the big internet companies because of it. He's not even hiding his unconstitutional anti-First Amendment reasons for doing so:

Landry says the internet giants are suppressing conservative agendas, stifling competition, and infringing on antitrust laws.

“This can’t be fixed legislatively,” Landry told The Advocate Tuesday. “We need to go to court with an antitrust suit.”

Again, it's not at all proven that the internet giants are "suppressing conservative agendas." If they were, that would be quite remarkable, given that apparent "conservatives" control the White House, both houses of Congress, the judiciary and the vast majority of state houses. It would certainly then suggest that these internet companies aren't very good at suppressing such an agenda if they really were attempting to do so (and, spoiler alert: they're not).

But, of course, the larger point still stands: this is clearly a government official, looking to use not just executive power, but law enforcement powers, to intimidate companies regarding speech on their platforms. That is 100% unconstitutional. I already detailed a variety of cases that make this point, but it appears that law enforcement officials are going to ignore that, so long as they can politically grandstand on this issue.

But, just to flip this around: would Louisiana Attorney General Jeff Landry agree that Fox News or Breitbart should be hit with legal action for "suppressing liberal agendas?" Of course not.

Some will say that this is just politicians being politicians, and they'd have a point. But what's absolutely astounding is that some on the other end of the political spectrum are jumping on this just because they so hate Google. Matt Stoller, from the Open Market Institute, has spent the past few years misrepresenting all sorts of arguments concerning the internet companies, and pushing for them to be broken up. He sits very far away from Landry politically, but apparently as long as a politician wants to break up the internet companies (even in violation of the First Amendment) that seems to be cool with him:

After people pointed out to him that Landry was just playing partisan politics, Stoller responded by suggesting that maybe it's for the wrong reasons, but at least someone is trying to break up these companies (despite there being no evidence to support such a move):

Lots of people have key issues that they think are important. For some that may be breaking up the big internet companies. But a general rule of thumb: if you have to spit on the First Amendment to get your wish, you're doing it wrong.

Comcast's latest effort to grow even larger is spooking even the company's investors. "Growth for growth's sake" has been the mantra of the telecom and TV sectors for years. Once growth in any particular market (like broadband) saturates, companies begin nosing about for efforts to grow larger in other sectors, even if it it's well outside of their core competencies (see Verizon Sugarstring, Go90). Unfortunately for the end user, such growth isn't accompanied by any meaningful parallel investment in quality product or customer service, a major reason so many users "enjoy" Comcast services today.

At the same time, this growing power results in increased efforts to thwart any effort to rein in this power, leaving oversight of the natural monopolies more precarious than ever (see: net neutrality). That's exceptionally true for Comcast, where the one-two punch of fading state and federal oversight, expiring NBC Universal merger conditions from its last 2011 megadeal, and a growing monopoly over broadband is forging a perfect storm of trouble.

Comcast's latest gambit came over the weekend, when the nation's biggest cable operator toppled 21st Century Fox with a $39 billion for Sky broadcasting, Europe's biggest pay TV operator. But even Wall Street stock jocks, traditionally more than happy to cheerlead mindless growth for growth's sake, have become nervous about the expansion, worrying that Comcast's overseas exploits are little more than a pricey distraction:

"Craig Moffett, an analyst at MoffettNathanson LLC, downgraded Comcast’s stock Monday to neutral, saying the company had “grossly overpaid for Sky.” Timothy Horan, an analyst at Oppenheimer, also downgraded Comcast’s stock, citing the company’s need to invest instead in the U.S., where it faces growing competition from wireless and online TV rivals."

“It’s going to be incredibly hard to justify having paid such a high price,” Moffett said in an interview Sunday. “This is an asset that neither Disney nor Comcast investors wanted to win.”

Comcast stock price took a major tumble as a result. The biggest problem for many investors is debt. Like AT&T's acquisition of Time Warner, the deal saddles Comcast with so much debt it's going to be forced to cut corners on other fronts in order to shore up the losses. Usually, at least in telecom, that results in cuts to customer service. It also results in companies nickel and diming captive customers harder than ever, whether that means usage caps and overage charges, bullshit fees, or even charging users more money if they want to protect their own privacy.

As you might expect, Comcast tried to put a more positive spin on its latest looming acquisition, company CEO Brian Roberts bubbling over about the overseas expansion:

"This is a great day for Comcast. Sky is a wonderful company with a great platform, tremendous brand, and accomplished management team. This acquisition will allow us to quickly, efficiently and meaningfully increase our customer base and expand internationally. We couldn’t be more excited by the opportunities in front of us. We now encourage Sky shareholders to accept our offer, which we look forward to completing before the end of October 2018."

The problem, of course, is the same one Comcast has always faced. Its ragingly incompetent customer service has made it the laughing stock of the tech industry for the better part of the last decade. What Comcast actually needs is to pause, invest in overall quality and support, and focus on its core competencies. But because traditional broadband is never profitable enough, quickly enough for Wall Street, Comcast executive eyeballs are always fixed everywhere other than fixing some of the company's many, fatal flaws.