Sorry for the late post, everyone! A glitch crept into our admin system and I was unable to access the leaderboards for most of the day. But now, without further delay, our top comments of the week...

First place on the insightful side is a simple, no-nonsense response from Mononymous Tim to a fired cop's complaints about public release of his body camera footage turning people against him:

It's called accountability. Deal with it!!

In second place, we've got a proposal from That One Guy for a way to fix the civil asset forfeiture system:

How to fix the problem in five minutes:

'Any seized property and/or money without proper, verifiable documentation tracking who it was taken from, when it was seized, and the legal justification for the seizure shall be considered to have been acquired illegally.

The property/funds shall be immediately transferred to a neutral third party, which shall hold on to it for a period of six months, during which members of the public may present evidence to demonstrate that they were the previous owners of a given pieces of property. Any property left unclaimed after this period has expired shall be liquidated, and the resulting funds shall be transferred in their entirety to the public defender's office, to be used to pay the legal fees of those that would otherwise be unable to do so.'

Wouldn't be perfect(those that couldn't provide proper documentation would still be screwed, but I'm really not sure how to get around that offhand), but it would remove the NYPD's main motivation for stealing anything they can get their hands on, and provide a good motivation not to do so at the same time.

For editor's choice on the insightful side, we start out with a response from takitus to the sneaky choice by copyright trolls to start calling settlement offers "fines":

I’d imagine most people think of a “fine” as something they’re required (by a government or other authority) to pay as a form of punishment, whereas a settlement suggests a negotiated, voluntary agreement between parties. By replacing the latter term with the former, these letters suggest that the recipient has already been tried and found guilty.

I’m sure this choice of language was completely accidental...

Next, we've got a story from ShadowNinja suggesting that the main reason ISPs don't want to have to provide more accurate broadband maps is that they are just really bad at it:

Story time, I think part of why the ISP's don't like this is because they're so incompetent that their own internal maps are wrong.

Years ago the business I worked at wanted to upgrade to get Verizon FIOS. But we were told repeatedly that it wasn't available in our area. This was despite the fact that:

• Our next door neighbor, a dental office, already had FIOS.
• We could clearly see the FIOS boxes outside of our window on the cable lines.

After some arguing with them over the phone we finally got them to send a technician out, to verify that their maps were wrong and we could get FIOS.

But the best part? A few years later we got a knock on our door from a Verizon salesman, asking us if we wanted to upgrade to the FIOS we already had!

So yes, despite them having several years to fix their maps, and being told by us that FIOS was available in the area, and despite the fact that we were paying for it, Verizon was incompetent enough to send a salesman to our door offering to sell it to us.

Over on the funny side, both our winners came in response to the Canadian couple that is suing their neighbour for building a similarly designed house to their own. The first place winner is an anonymous commenter who was quickest to the comments with a healthy dose of eye-rolling sarcasm:

They copied other things too

Both homes have walls, roofs and floors clearly copying the first. They also have lawns, use outside air and have water and electrical incorporated right into the home itself.

Madness.

Next thing you know, they will be installing a driveway, walkway and wait... They already copied those too. Those bastards are going to pay now.

Some people really need to just be barred from every using the court to demonstrate their insanity. Maybe they should be wearing a helmet and bite guard to prevent the online assaults that they deserve for bringing a lawsuit like this in the first place.

And the second place winner was a different anonymous commenter with an entirely different kind of joke:

It's an infringing day in the neighbourhood, an infringing day in the neighbourhood, and won't you be my plaintiff...

For editor's choice on the funny side, we've got two more responses to the effort by ISPs to silence calls for more accurate broadband maps. Orbitalinsertion proposed a shortcut solution:

Maybe the FCC should just ask the NSA. Those ISPs have already handed over everything to them.

But I think this anonymous commenter had the most efficient suggestion:

A truly accurate map would just be the United States, shaded in all one color, with the key reading "Not Good Enough."

That's all for this week, folks!

Five Years Ago

This week in 2012, we saw more copyright nonsense as South Park was sued over a character design and textbook publisher Pearson managed to take down 15-million student and teacher blogs with a single DMCA notice — but of course, being punished for a bad DMCA notice was and is almost impossible. As we approached the 30-year anniversary of the CD, we lamented the lack of music industry innovation, while the numbers continued to show that file sharers are also big media buyers. And Harvey Weinstein made an appearance on Techdirt — over an unhinged rant about piracy.

Ten Years Ago

This week in 2007 things weren't much different, though perhaps even sillier, with one law firm trying to use copyright to claim you can't look at its website's source code, a bunch of media companies claiming it's infringement to skip commercials, Congress pushing for anti-P2P laws with claims that P2P promotes identity theft, and the RIAA launching its lawsuit against Usenet.com. Amidst all this, YouTube made a major announcement and ContentID was born.

Fifteen Years Ago

And guess what? More of the same this week in 2002 — but it was a week when more people were noticing the problems. Some were (rightly) worrying about the future of expanding DRM, and talking about copyright law as the new prohibition and a tool that lets corporations destroy America's cultural heritage, and asking if we really want to put the dinosaurs in charge of evolution. Copyright defenders were hitting back weakly, with arguments amounting to "trust me" and "shut up, Gary Shapiro, we don't like you".

The NYPD is actively opposed to transparency. It does all it can to thwart outsiders from accessing any info about the department's inner workings. This has led to numerous lawsuits from public records requesters. It has also led to a long-running lawsuit featuring the Bronx Defenders, which has been trying to gain access to civil forfeiture documents for years.

The NYPD has repeatedly claimed it simply cannot provide the records the Bronx Defenders (as well as other records requesters) have requested. Not because it doesn't want to, even though it surely doesn't. But because it can't.

The department has spent $25 million on a forfeiture tracking system that can't even do the one thing it's supposed to do: track forfeitures. The Property and Evidence Tracking System (PETS) is apparently so complex and so badly constructed, the NYPD can't compile the records being sought.

Oddly enough, the Bronx Defenders has pieced together enough data from the NYPD's broken PETS (along with other public records) to at least point out the glaring discrepancy between what the department publicly claims it has in its forfeiture accounts and what the database says it does.

At the hearing, the NYPD claimed that it only legally forfeited $11,653 in currency last year — that is, gone to court and actually made a case as to why the NYPD should be taking this money.

[...]

In the accounting summaries which the Bronx Defenders submitted as part of its testimony, the NYPD reports that as of December 2013, its property clerk had almost $69 million in seized cash on hand. This amount had been carried over from previous years, showing an annual accumulation of seized cash that has reached an enormous amount. The documents also show that each month, the five property clerk’s offices across the city took in tens of thousands of dollars in cash, ultimately generating over $6 million in revenue for the department.

When pressed in court, NYPD experts claim the NYPD lacks the expertise to extract the sought data from its forfeiture database. These assertions are at odds with the NYPD's self-perception: that it is fastest and smartest law enforcement agency in the US (better than the FBI, in fact) and foreign governments should be grateful its officers and analysts are showing up uninvited at scenes of overseas terrorist attacks.

Somehow, these highly-trained officers are unable to extract data from a $25 million database. Maybe it's not the lack of talent. Maybe it's the lack of desire. Maybe the NYPD has zero interest in tracking this data because it doesn't want the public to see how much it has hoovered up or make it any easier for citizens to challenge forfeitures.

The lawsuit continues, with the NYPD continuing to top itself with each round of expert testimony. As Adam Klasfield reports for Courthouse News, the NYPD's $25 million database is worth even less than previously assumed.

New York City is one power surge away from losing all of the data police have on millions of dollars in unclaimed forfeitures, a city attorney admitted to a flabbergasted judge on Tuesday.

“That’s insane,” Manhattan Supreme Court Judge Arlene Bluth said repeatedly from the bench.

It is insane. There's no way around it. The assumption would be that a $25 million database has built-in redundancy. But of course it wouldn't. Not with the NYPD running it and not with its active disinterest in providing records to records requesters or having any accountability present in its forfeiture system.

And why should the NYPD fix it? From its perspective, this is fine. Data goes in and never comes out. If it all disappears because someone trips over the power cord, the NYPD suffers no negative consequences. Everything it has taken over the years defaults to the NYPD until proven otherwise by claimants. And that's going to be a lot tougher to do when the NYPD has no records related to the forfeiture.

The court is in no position to do anything about this. It can't order the NYPD to fix its system. All it can do is demand it comply with records requests and pay the legal fees of prevailing parties. But the NYPD can continue to run a useless system for the rest of whatever. The burden of proof in forfeiture cases is already shifted to claimants. A broken system places even more of a burden on those seeking return of their property, thanks to PETS being unable to confirm or deny existence of responsive records. It's GlomarDb and it makes a mockery of public records laws and due process simultaneously.

If you've followed our series of posts about Denuvo, the DRM once claimed to be the end of video game piracy, you may have thought we had reached the end of its saga a couple of weeks ago when Denuvo-"protected" title Total War: Warhammer 2 was cracked and defeated within a day of its release. After all, once a game has been cracked in a time increment that can be measured in hours, you likely thought that was the finish line of Denuvo's lifespan.

You were wrong. In the past week or so, multiple games that used Denuvo have been cracked on the same day as their release, with most of them being AAA titles from big publishers.

This week's release of South Park: The Fractured but Whole is the latest to see its protections broken less than 24 hours after its release, but it's not alone. Middle Earth: Shadow of War was broken within a day last week, and last month saw cracks for Total War: Warhammer 2 and FIFA 18the very same day as their public release.

Those nearly instant Denuvo cracks follow summer releases like Sonic Mania, Tekken 7, and Prey, all of which saw DRM protection cracked within four to nine days of release. But even that small difference in the "uncracked" protection window can be important for game publishers, who usually see a large proportion of their legitimate sales in those first few days of availability.

With that window shrunk down to roughly zero days of protection for what is now multiple games coming out in a similar time period, it sure seems like the cracking groups have been able to replicate their successes in cracking this DRM with enough speed to make it wholly irrelevant. One imagines the folks behind Denuvo are at this point quite worried. And they should be, because even games that used Denuvo in their early-release versions are beginning to just drop it from their games as useless.

Then there's The Evil Within 2, which reportedly used Denuvo in prerelease review copies but then launched without that protection last week, effectively ceding the game to immediate potential piracy.

Now, the Ars post goes on to state that there have been rumors of a 5th release of Denuvo, with an update that the company hopes will once again render the DRM software something other than completely obsolete. But with publishers now dropping the software from their releases, even when they had fully planned on using Denuvo from the pre-release stage, you have to wonder just how much confidence any game publisher is going to have in release number 5.

Given the precipitous fall Denuvo has had over its first four releases, any confidence on display by the publishers or Denuvo itself would certainly raise my eyebrows.

A few weeks ago, we wrote about a hellishly sketchy plan by a drug company, Allergan, to avoid the process as known as "Inter Partes Review" of its weak patents. In the weeks since that post a bunch has happened, but before we catch you up, a refresher is important. One of the biggest problems of the patent system for years has been the US Patent Office's willingness to grant terrible patents. This is only partially the Patent Office's own fault -- as some of it is just the nature of how our patent system is designed. As it is, patent examiners have limited time to review patents, and all of the incentives are to approve them, rather than reject them (a rejection can be endlessly appealed, granting gets it off the examiner's plate and improves the "productivity" of the office). On top of that, there's no adversarial process -- an examiner only gets info on why the patent should be granted, and not reasons it shouldn't. In an age where unscrupulous patent attorneys push to patent absolutely everything and many view patents as a lottery ticket, you have a situation where an overwhelmed Patent Office is approving a ton of bad patents, and letting the courts deal with it down the road.

That, of course, has been a disaster for actual innovators who don't have time and money to waste in court fighting bogus patent lawsuits. In the last round of patent reform, the America Invents Act, in 2010, a small, but smart, change was added to the system: the IPR setup. The idea was that it was a way to get a tribunal at the patent office to take another look -- by creating the adversarial process that is lacking from the original patent review process. This enables third parties to raise issues about the patent to the tribunal -- called the Patent Trial and Appeal Board (PTAB) -- and lets the PTAB review whether the patent should have been granted in the first place. Many patent system supporters hate the whole IPR thing, because they don't like the fact that their bad patents can be more easily invalidated. It certainly cuts off one part of the patent troll shakedown game. The Supreme Court is currently considering a case right now to throw out the PTAB as unconstitutional, while Congress has been kicking around ideas to kill it as well.

In the meantime, though, some lawyers have come up with a truly sneaky, and truly awful "work around" that they've basically now productized. After a decision by the PTAB earlier this year to refuse to even hear an IPR request involving a patent held by the University of Florida after the University (a part of the state of Florida) argued "sovereign immunity", lawyers realized that anyone could get out of the IPR process if they just "sold" their patent to a government entity who could claim sovereign immunity. From there is was only a few logical leaps to realize that Native American nations could claim such sovereign immunity. Hence, the deal to "sell" Allergan's patents to the St. Regis Mohawk Tribe.

Basically everyone recognizes this is a sham sale. The St. Regis Mohawk Tribe has no interest in this patent. Or the other patents its now "buying." It just gets some cash, which the original patent holder finds worth paying because it helps them avoid the IPR process. Everything gets "licensed" back to the original patent holder anyway, so the actual transaction is quite clear: patent holders paying Native American tribes solely to avoid a review by the patent office of their sketchy patents.

When the Allergan deal became public, lots of people grew concerned. It seemed like such a naked attempt to game the system. The House Oversight Committee began investigating the issue, noting its serious concerns with what was happening.

On top of that, the issue flowed into the case involving the patents in question. Remember: the IPR process is handled at a special tribunal at the patent office. But there can still be lawsuits going on in parallel, and that's what was happening with Allergan in its patent fight against Teva Phramaceuticals (who is challenging the validity of Allergan's patents). The case still goes on no matter what happens with the IPR process, but Teva raised the issue of whether or not the Mohawk tribe now needed to become a plaintiff in the case too. After a pretty quick back and forth of papers flying in the court, the judge has, in fact, added the tribe as a plaintiff to the case, while issuing an order that raises serious concerns about this practice of laundering the patents through a Native American tribe to avoid IPR. While the court doesn't directly claim that the transfer is invalid, it certainly suggests the court does not look kindly on the practice:

The Court has serious concerns about the legitimacy of the tactic that Allergan and the Tribe have employed. The essence of the matter is this: Allergan purports to have sold the patents to the Tribe, but in reality it has paid the Tribe to allow Allergan to purchase—or perhaps more precisely, to rent—the Tribe’s sovereign immunity in order to defeat the pending IPR proceedings in the PTO. This is not a situation in which the patentee was entitled to sovereign immunity in the first instance. Rather, Allergan, which does not enjoy sovereign immunity, has invoked the benefits of the patent system and has obtained valuable patent protection for its product, Restasis. But when faced with the possibility that the PTO would determine that those patents should not have been issued, Allergan has sought to prevent the PTO from reconsidering its original issuance decision. What Allergan seeks is the right to continue to enjoy the considerable benefits of the U.S. patent system without accepting the limits that Congress has placed on those benefits through the administrative mechanism for canceling invalid patents.

If that ploy succeeds, any patentee facing IPR proceedings would presumably be able to defeat those proceedings by employing the same artifice. In short, Allergan’s tactic, if successful, could spell the end of the PTO’s IPR program, which was a central component of the America Invents Act of 2011. In its brief, Allergan is conspicuously silent about the broader consequences of the course it has chosen, but it does not suggest that there is anything unusual about its situation that would make Allergan’s tactic “a restricted railroad ticket, good for this day and train only.”...

Although sovereign immunity has been tempered over the years by statute and court decisions, it survives because there are sound reasons that sovereigns should be protected from at least some kinds of lawsuits. But sovereign immunity should not be treated as a monetizable commodity that can be purchased by private entities as part of a scheme to evade their legal responsibilities. It is not an inexhaustible asset that can be sold to any party that might find it convenient to purchase immunity from suit. Because that is in essence is what the agreement between Allergan and the Tribe does, the Court has serious reservations about whether the contract between Allergan and the Tribe should be recognized as valid, rather than being held void as being contrary to public policy.

The court doesn't go quite that far, noting that it doesn't need to determine this issue at this time, and the issue maybe better suited for the PTAB rather than federal court, but it certainly is noteworthy to see such strong language condemning the plan. Of course, that ruling was probably the least of Allergan's worries, as at the same time, the judge also invalidated the patents in question for obviousness. This post is about a different aspect of Allergan's sketchy plans, so we won't even bother digging into the 100+ pages in the judge's decision on this, other than to note that it appears to include even more sketchy behavior on the part of Allergan.

Of course, this is not stopping others from following in Allergan's footsteps. Just days after that court ruling, the very same "Mohawk Tribe" had magically teamed up with a company called SRC Labs, and filed a patent infringement case against Amazon and Microsoft. SRC Labs, if you're wondering, appears to be the estate of Seymour Cray, the founder of Cray Inc. (who was just involved in another important case unrelated to all of this). And, this is not the only such case.

It's hard to see this loophole lasting very long. Hopefully the IPR process survives the various challenges its facing, but on top of that, hopefully the PTAB and/or the courts, shut down this obvious gamesmanship for patent holders to avoid accountability.

For years we've noted how if you want to really understand the dysfunction at the heart of the U.S. broadband industry, you should take a closer look at West Virginia. Like most states, West Virginia's state legislature is so awash in ISP campaign contributions it literally lets incumbent ISPs write state law, only amplifying the existing lack of broadband competition in the state. So when the state received $126.3 million in broadband stimulus funds, it's not particularly surprising that a report by the US Commerce Department's Office of Inspector General (pdf) found more than a few examples of fraud and waste.

More specifically, Frontier was accused of buying and storing miles of unused fiber to drive up costs, as well as the use of various "loading" and "invoice processing" fees to milk taxpayers for an additional $5 million. The report's findings come on the heels of previous reports that found Frontier and the state used taxpayer money on unused, overpowered routers and overpaid, redundant, and seemingly purposeless consultants. As is often the case with regulatory capture, efforts to hold anybody accountable for any of this have so far gone nowhere.

But after the Inspector General's report, the federal government decided it might be a good idea to at least ask for some of this misspent money back from Frontier and the State. According to the Charleston Gazette Mail, of particular interest were these additional "loading" surcharges, and the fact Frontier stockpiled 49 miles of unused fiber to drive up build costs:

"The Commerce Department letter cites findings that Frontier misled the public about the amount of unused fiber cable — called “maintenance coil” — the company installed across the state. The extra fiber, which is stored at public buildings and used for repairs, drove up the broadband expansion project’s cost. Frontier placed 49 miles of spooled-up, unused fiber in West Virginia, four times the amount the company had disclosed to state officials.The feds have ordered state officials to disclose whether the extra coil was included in the total miles of fiber the state claimed Frontier built with stimulus funds. The state also must get an “explanation from Frontier for the reason it misrepresented the maintenance coil mileage to the public,” according to the Commerce Department’s Aug. 21 letter.

This sort of stuff happens pretty much constantly in telecom as companies pay empty lip service to "bridging the digital divide." But whereas giants like Comcast, AT&T and Verizon have the lobbying and policy chops to obfuscate such graft, West Virginia is so dysfunctional Frontier doesn't even have to try. Case in point: a Frontier executive has spent years also employed as State Senate leader -- without anybody raising much of an eyebrow. That employee was only recently fired -- but only because he finally failed to oppose a bill Frontier wanted killed.

With that kind of support, it's not too surprising that Frontier executives say they won't be returning the misspent taxpayer money anytime soon:

"In a letter to West Virginia Chief Technology Officer John Dunlap this week, Frontier asserted that any funds the state might return to the federal government “are, of course, not recoverable from Frontier.”...Frontier also disputed the federal government’s determination that the state must return $4.7 million, urging the state to file an appeal. "To avoid the waste of millions of West Virginia taxpayer dollars, the [state] should appeal,” wrote Mark McKenzie, a Frontier engineer who oversaw the company’s role in the project.

Again, if you've tracked the similar reports bubbling out of the state for years, the $4.7 million the feds want returned is likely only the tip of the iceberg. But because state legislatures are often little more than glorified rubber stamps for the interests of giant telecom operators, it's less than likely that these inquiries result in anything vaguely resembling genuine accountability. As a result, West Virginia remains one of the least broadband-connected states in the union, a story of graft and regulatory capture that plays out in countless states across the country on a daily basis. This is, as they say, why we can't have nice things.

Think we're unduly worried about how "trafficking" charges will get used to punish legitimate online speech? We're not.

A few weeks ago a Mississippi mom posted an obviously joking tweet offering to sell her three-year old for $12.

I tweeted a funny conversation I had with him about using the potty, followed by an equally-as-funny offer to my followers: 3-year-old for sale. $12 or best offer.

The next thing she knew, Mississippi authorities decided to investigate her for child trafficking.

The saga began when a caseworker and supervisor from Child Protection Services dropped by my office with a Lafayette County sheriff’s deputy. You know, a typical Monday afternoon.

They told me an anonymous male tipster called Mississippi’s child abuse hotline days earlier to report me for attempting to sell my 3-year-old son, citing a history of mental illness that probably drove me to do it.

Beyond notifying me of the charges, they said I’d have to take my son out of school so they could see him and talk to him that day, presumably protocol to ensure children aren’t in immediate danger. So I went to his preschool, pulled my son out of a deep sleep during naptime, and did everything in my power not to cry in front of him on the drive back to my office.

All of this for a joke tweet.

This story is bad enough on its own. As it stands now, actions by the Mississippi authorities will chill other Mississippi parents from blowing off steam with facetious remarks on social media. But at least the chilling harm is contained within Mississippi's borders. If SESTA passes, that chill will spread throughout the country.

If SESTA were on the books, the Mississippi authorities would not have had to stop with the mom. Its next stop could be Twitter itself. No matter how unreasonable its suspicions, it could threaten criminal investigation on Twitter for having facilitated this allegedly trafficking-related speech.

The unlimited legal exposure these potential prosecutions pose will force platforms to pre-emptively remove not just the speech of parents from Mississippi but any speech from any parent anywhere that might inflame the humorless judgment of overzealous Mississippi authorities – or authorities from anywhere else where humor and judicious sense is also impaired. In fact, it won't even be limited to parents. Authorities anywhere could come after anyone who posted anything that they decided to misinterpret as a credible threat.

These warnings might sound like hyperbole, but that's what hangs in the balance: hyperbole. The ability to say ridiculous things because sometimes we need to say ridiculous things. If anything that gets said can be so willfully misconstrued as evidence of a crime it will chill a lot of speech, and to an exponentially unlimited extent far beyond any authority's jurisdictional boundaries if it can force platforms to fear enabling any such speech that might happen to set any of them off.

Maximize your peace of mind on the road with this Hi-Res DashCam. Simply turn it on when you're driving, and it'll record footage of the road on a continuous loop. It offers up to 2 hours of recording time with an 8GB microSD card, and can take still shots as well. It automatically records when your car suddenly jerks or shakes, even if the device is turned off. The dashcam is on sale for $25.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

A lawsuit filed against President Trump alleges a host of First Amendment violations stemming from Trump's Twitter blocklist. According to the suit filed by the Knight First Amendment Institute at Columbia University, an official government account shouldn't be allowed to block users from reading tweets. Sure, there's an actual official presidential Twitter account, but nothing of interest happens there. Everything from retweets of questionable GIFs to arguable threats of nuclear war happen at Donald Trump's personal account. But everything's all mixed together because the president insists on using his personal account (and its blocklist) to communicate a majority of his thoughts and opinions.

The government's lawyers are now forced to defend the president (and his blocklist) from these allegations. It's not an easy job. In fact, as Alison Frankel reports, it requires a significant amount of cognitive dissonance.

First, the government has argued the Twitter account President Trump uses most is not a publicly-owned (read: government) Twitter account.

The brief’s primary argument is that @realdonaldtrump is not a public forum. It’s a private platform governed by the rules of a private company, the Justice Department said. The president opened his account before he was an elected official, the brief said, and his continued operation of the account is not a right conferred by his election to the presidency. “The president does not operate his personal Twitter account by virtue of federal law, nor is blocking made possible because the President is clothed in Article II powers,” the brief said.

This makes some sense, even if Trump's use of this account to announce positions on issues and potential government action undermine the "not a public forum" argument. He did have this account prior to the presidency, but perhaps he should have abandoned it for the official presidential account once he took office. Even though this argument is somewhat credible, the next argument from the government almost completely undermines it.

President Trump, in other words, is not flexing his presidential power when he tweets as @realdonaldtrump, according to the Justice Department. But at the same time, Justice argued in the summary judgment brief, the president can’t be sued for posting to his private account because he’s acting as the president.

He's not the president (so to speak) when he tweets from his personal account. But he is the president, so he can't be sued. No matter how many accounts he blocks. The president, according to White House counsel, is able to occupy two states simultaneously thanks to the magical powers of Twitter.

It sounds ridiculous (and it is), but as Frankel points out, seemingly contradictory arguments are made all the time at this point in the pleadings. The judge is one that decides which arguments move forward -- sometimes even without calling out lawyers for arguing against their own arguments.

Stripping the case of all legalese, the account Trump prefers to use should be considered an official account. And if it's an official account, Trump needs to lay off the "block" button. You can't force citizens to jump through hoops to view proclamations made in a de facto public square. Even if Trump can't be sued, he should at least lift the blocks. It's not very presidential to pointedly lock certain people out of public discussions.

For the better part of a decade we've noted how if America really wanted to improve its horrible broadband problem it would stop letting industry giants like Comcast write shitty protectionist state telecom law. Over the last fifteen years, more than twenty states have passed laws preventing towns and cities from building their own broadband networks even when no incumbent broadband provider will. In many instances these bills also hamstring public/private partnerships, which are often the only way to creatively bring better broadband to under-served or unserved areas of the country.

Michigan is the latest to highlight this problem. Freshman Representative Michele Hoitenga this month introduced HB 5099, a bill that would make it difficult if not impossible for local towns and cities to build their own broadband networks. The bill would ban towns and cities from using taxpayer funds to improve local telecom infrastructure. According to the Institute for Local Reliance, an organization that fights these protectionist measures and helps municipalities improve broadband coverage, the bill would also deter towns and cities from striking public/private partnerships with the likes of Google Fiber:

"The exception allows local communities to engage in public-private partnerships, but the bill’s ambiguous language is likely to discourage local communities from pursuing such partnerships...Rather than put themselves at risk of running afoul of the law, prudent community leaders would probably choose to avoid pursuing any publicly owned infrastructure initiatives.

ISPs defend these bills by insisting they're just really concerned about wasting tax dollars (despite historically wasting far more taxpayer money than potentially any other industry in America). Lobbyists and hired telecom policy hacks have spent fifteen years demonizing all municipal broadband projects as boondoggles. In reality, their goal is to protect regional duopolies from anything even closely resembling real broadband competition by ghost writing awful state law. They want their cake and to eat it too: they refuse to offer quality service or upgrade their networks, but they want government to prevent anybody else from doing so either.

In reality, municipal broadband networks are like any other business plan. Some are good, some are bad, and all are highly dependent on the particulars of a region. But it should be up to local voters and the towns and cities themselves to make that determination -- not AT&T and Comcast lobbyists and hired policy flacks sitting half a world away.

As people have grown more frustrated with shitty broadband, bipartisan opposition to these kinds of bills has only grown. After all, disdain for Comcast and its abysmal customer service is one of only a few things that can truly bridge partisan divides. Most people seem to realize we need to get creative to compensate for ISPs that feel fully deploying broadband networks (especially to rural markets and the poor) isn't worth the time and money. As a result, Hoitenga this week began facing some notable blowback on Twitter (you really should read this entire exchange while it still exists) for her proposal.

Hoitenga quickly made it clear she doesn't actually understand the proposal she's supporting. For example, while her bill would take rights away from local voters by hamstringing how they can fund their own local infrastructure, she insisted she was somehow protecting voting rights:

Hoitenga then proceeded to display her profound misunderstanding of the broadband market by insisting municipal broadband networks aren't really necessary, because Michigan voters somehow have access to 37 different competing broadband providers:

How did the lawmaker come to this conclusion? Bing (yes, Bing!) apparently told her so. While most people usually have the choice of only one or two broadband providers that barely compete with each other, the lawmaker posted a screenshot in the bizarre belief she was contradicting this reality:

Of course, if you actually visit the page that she saw in her Bing search, it tells, well, a very very different story. It's useful, first, to scroll to the bottom to look at the actual map of Holland, which shows how many providers are where.

Note that most of Holland has only 2 or 3 providers. Not 37. Again, this is from the very link she claims supports her "37 providers" claim. And, of course, if you look at the details of where that "37" number came from, you'll quickly understand why it's bogus. First, it includes wireless and business-only broadband providers. That's totally unrelated to the residential market. Second, it counts different kinds of broadband from the same company (e.g. "DSL" and "fiber") as a separate provider, despite clearly being the same. Finally, and most importantly (and obviously from the map above) it ignores that the vast majority of these providers cover very, very little of the city of the city -- to the point that they're barely offering service in the city at all. Below are the residential offerings, and if you focus on that "availability" column, you'll note that most of them cover well less than 5% and a bunch are around 1%.

At most you could argue people would likely have a choice of 3 providers in their location. And one of them -- TDS DSL -- is apparently limited to 4mbps which, you know, is not broadband according to the very definition provided by the FCC. And, how can we not mention the "customer ratings" column? The whole point here, and the very reason why so many people are clamoring for competition from municipal broadband, is because they hate their expensive, crappy, limited choices.

The biggest problem here however is that these bills are usually quite literally written by incumbent ISPs, then shoveled through the legislative process via organizations like ALEC. Said ghost-written legislation then stumbles through approval with lawmakers barely understanding what they're pushing, which is something we've seen time and time again. If ISPs are so opposed to municipal broadband, there's an easy way to stop these efforts: offer a better, cheaper product and improve their historically-awful customer service.

But in the United States, it's far easier to ghost write legislation, hand it off to a cash-compromised lawmaker that has no idea what it means, then sit back and enjoy the financial benefits of regulatory capture while America falls farther behind the broadband curve. This really is, as they say, why we can't have nice things.