This truly is, as they say, why we can't have nice things.

In the wake of the FCC's ham-fisted net neutrality repeal, more than half the states in the country are now exploring their own, state-level net neutrality protections. California's proposal, Senator Scott Weiner's SB 822, was seen as particularly promising in that it went even farther on some important issues than the 2015 FCC rules it was intended to replace. The EFF went so far as to call California's proposal the "gold standard" for state-level net neutrality laws, noting it did a better job policing many of the problem areas where modern anti-competitive behavior occurs, such as zero rating or interconnection.

You probably saw that AT&T just got done spending $86 billion to acquire Time Warner. The company harbors dreams of using its combined dominance over broadband and media content to anti-competitive advantage, something that's undeniable if you've watched AT&T do business for any particular length of time.

Since California's law would have severely hampered AT&T's dreams of dominating the streaming video and ad wars to come, the company got right to work derailing California's legislative push in its usually-underhanded way. The company managed to convince California Assemblyman Miguel Santiago to introduce a series of last-minute secretive Tuesday night amendments that were then voted on without debate during a Wednesday morning hearing:

"The committee, lead by Assemblyman Miguel Santiago, D-Los Angeles, issued amendments to the bill late Tuesday night. Among its recommendations were to permit a controversial internet service provider practice called “zero rating,” where some websites and apps don’t count against a consumer’s data allotment. Opponents view zero rating as a backdoor way of discriminating against online services that don’t strike free-data deals with broadband and wireless companies."

In the early days of net neutrality, ISPs like AT&T engaged in more ham-fisted and non-transparent abuse of their broadband monopolies. Like the time AT&T blocked Facetime from working unless users upgraded to more expensive data plans, or the time Comcast throttled all upstream BitTorrent traffic then repeatedly lied about it.

As people got smarter to what ISPs were up to, ISPs began getting more nefariously clever. Like the time ISPs let their peering and interconnection points intentionally congest to kill settlement-free peering and drive up costs for companies like Netflix, slowing down Netflix streams for everyone until the company paid up. Or the way that ISPs now impose arbitrary and unnecessary usage caps, then exclude their own streaming services from them while still penalizing competitors (aka zero rating), something it took years for the last FCC to finally realize was just as anti-competitive.

Fast forward to this week. To convince lawmakers to back off the restrictions on zero rating, AT&T first employed the use of a group dubbed CALinnovates, one of numerous groups AT&T covertly funds to pee in the discourse pool. CALinnovates then circulated an incredibly misleading study among lawmakers falsely claiming that AT&T's anti-competitive use of usage caps is a huge boon to the state's minority populations (err, false). AT&T then got state lawmakers to approve of a list of major amendments Tuesday evening that would cripple the most important parts of the bill.

Specifically, AT&T convinced Santiago to strip away all rules governing zero rating, all guidance preventing interconnection shenanigans, as well as a rule that would have prevented ISPs from charging other companies "access fees" if they want to reach AT&T customers. Santiago's office refused any and all contact from reporters (myself included) on Tuesday night, then quickly rushed those amendments through the voting process before they could even be debated. Disgusted by the railroading, Weiner ultimately pulled his bill entirely, arguing that it no longer adequately protected consumers:

"It is no longer a net neutrality bill,” a visibly frustrated Wiener said after the vote. In an unusual move, the committee voted on the bill before Wiener was given a chance to testify. “I will state for the record ... I think it was fundamentally unfair,” he said.

Net neutrality activism groups like Fight for the Future were notably less subtle in their own statements:

"The level of corruption we just witnessed literally makes me sick to my stomach,” said Evan Greer, deputy director of Fight for the Future, a digital rights group with more than 350,000 members in California. "These California democrats will go down in history as among the worst corporate shills that have ever held elected office.Californians should rise up and demand that at their Assembly members represent them. The actions of this committee today are an attack not just on net neutrality, but on our democracy."

If you've watched AT&T do business, the fact that it was able to scuttle this bill in such a "progressive" state shouldn't be surprising. AT&T's political power over many state legislatures is often downright comical, to the point where AT&T lawyers are quite literally the ones writing terrible state law. That's particularly true in states like Tennessee, though in ignoring the undeniable will of the public on this subject, California has proven itself no better.

All told it has been a great year and a greater few weeks if your name is AT&T. Net neutrality formally died on June 11, the company's latest megamerger was approved thanks to a comically narrow understanding of the markets by a Federal Judge, and it managed to scuttle state-level net neutrality in California, purportedly a stronghold for net neutrality activism. This on the heels of successful efforts to neuter FCC oversight of historically unpopular and anti-competitive incumbent ISPs. What could possibly go wrong?

It's assumed (wrongly) that minors have few, if any, Constitutional rights. The error is easy to make because they're just kids. They can't drink, smoke, vote, or even serve their country/secure these own valuable freedoms by [checks sources] aiding in the increase of opium production in foreign countries. "Hundreds of government officials can't be wrong!" someone is sure to exclaim, being just as wrong as the hundreds half-assedly cited in their stinging rebuttal.

Minors do have rights. They're subject to more limitations but they're far from nonexistent. But that doesn't stop prosecutors, cops, and school officials from pretending "limited" equals "zero." A case highlighted by FourthAmendment.com shows a court pushing back against this assumption, which took the form of an overly-invasive probation condition slapped on a minor following a search of the student which uncovered a small knife, rolling papers, and a lighter.

The incident leading to the search began when the student fell asleep during class, which is possibly one of the most ordinary things a student can do. The student admitted he had smoked marijuana the night before (also possibly one of the most normal things a high school student can do), but hadn't smoked any that day or on school property. He was asked to consent to a search and he volunteered he had a knife in his possession. The search uncovered the rest of the "contraband." The 15-year-old was then arrested, detained, and placed on home detention.

Had that been the end of it, there would have been nothing to write about. But the dispositional order dealing with probation conditions added a whole bunch of unnecessary stipulations given the violation. This occurred when the minor violated his probation conditions by using marijuana and Xanax. Subsequent violations occurred -- all of them drug-related. A few months later, the minor appeared to be back on the road to the state's good graces. He was doing well in school and had landed a job. For whatever reason, the state decided to punish the minor for getting his life back together. This hearing added stipulations that appear to be far more vindictive than curative, and they're certainly anything but Constitutional. From the decision [PDF]:

In the report submitted for the September 7, 2016 dispositional hearing, without explanation, the probation officer recommended adding an electronics search condition.

[...]

Later the same day, the juvenile court judge issued a signed written disposition order, describing the electronic search condition in greater detail, using the following text, which probation had recommended: “[Minor must] submit all electronic devices under [his] control to search and seizure by the probation officer at any time of the day or night with or without a search warrant, arrest warrant, or reasonable suspicion, including all logs, text and voicemail messages, photographs, emails, and social media account contents contained on any device or cloud or internet connected storage owned, operated, or controlled by [Minor], including but not limited to cell phones, computers, computer hard drives, laptops, gaming consoles, mobile devices, tablets, storage media devices, thumb drives, Micro SD cards, external hard drives, or any other electronic storage devices. [Minor] shall also disclose any and all passwords, passcodes, password patterns, fingerprints, or other information required to gain access into any of the aforementioned devices or social media accounts as requested by any probation officer . . . .”

The minor challenged this order on constitutional grounds, citing its needless violation of his privacy. Given the state's unwillingness to specify which of the offenses these conditions addressed, the court finds the minor has a solid point.

We agree with Minor that the electronics search condition imposed here is unconstitutionally overbroad because it is not narrowly tailored to achieve its ostensible purpose or to meet Minor’s needs. [...] Any connection between Minor’s offenses and his usage of electronic devices is speculative and, absent such evidence, the electronics search condition is not tailored to meet Minor’s specific needs.

As the court points out, there are less intrusive ways of achieving the same ends and it's highly unlikely blanket search permission for every single electronic device owned by the minor is the least intrusive option. It's also unlikely blanket search permission would somehow prevent the minor from obtaining drugs or alcohol.

Not only that, but the state's arguments for this supposed necessity ignored evidence showing more probation stipulations weren't needed to keep the minor from engaging in criminal activity.

In an interview with probation before the September 2016 dispositional hearing, Minor acknowledged having made poor decisions in the past, but stated he had new motivation to complete treatment and probation going forward, and that he had a new job, which was making a positive impact on his life.

Minor’s statements about his mindset were supported by his school’s report that it had no concerns with Minor’s behavior, that Minor arrived on time, completed all of his work, was “doing great,” and was “exhibiting a positive attitude.” Minor’s mother and his treatment program provided similar accounts. This information does not support the conclusion that only by subjecting Minor to a new, exhaustive, and invasive search condition—allowing probation to review every electronic device under his control, including any “gaming consoles, mobile devices, tablets, storage media devices, thumb drives, Micro SD cards, [and] external hard drives” and to access all of his “passwords, passcodes, password patterns, fingerprints, or other [similar] information”—could Minor be deterred from future use of controlled substances.

That strikes these conditions from the minor's probationary terms, restoring the privacy the state tried to take from him. The state insisted on defending this Constitutional violation despite having zero precedential support to cite. The closest it could come to a prior case in its favor involved a gang member who promoted his gang and its activity on social media when not using those platforms to issue threats to police officers and their families. That's not even close to the same level of severity in observed behavior. As the minor notes in his case, the state AG didn't even provide evidence the minor owned any of the devices the state decided it needed access to. But when you're playing Constitutional poker with someone else's money, why not take a flier on bullshit probation orders?

A few weeks back, we wrote about some unpublished censorship guidelines that provided insights into what the Chinese government is trying to stamp out online. However, one of the more curious activities whose depiction was forbidden was "vulgar use of a microphone controller". That seemed both surprisingly specific, and yet tantalizingly vague. A new post on Abacus News may explain what was meant by that phrase. It reports on yet another censorship move by the Chinese authorities:

the country's anti-pornography office ordered a number of platforms to remove a lot of ASMR content -- because they say some are akin to softcore porn.

Autonomous sensory meridian response (ASMR) is defined by Wikipedia as follows:

a term used for an experience characterized by a static-like or tingling sensation on the skin that typically begins on the scalp and moves down the back of the neck and upper spine. It has been compared with auditory-tactile synesthesia. ASMR signifies the subjective experience of "low-grade euphoria" characterized by "a combination of positive feelings and a distinct static-like tingling sensation on the skin". It is most commonly triggered by specific auditory or visual stimuli, and less commonly by intentional attention control.

The banned videos in China typically show people -- well, nearly always young women -- whispering into special high-quality binaural microphones that aim to capture audio the same way our ears hear sounds. As well as producing extremely realistic results, the microphones also allow sounds to move from one ear to the other -- best experienced with headphones to enhance this effect -- as if the person speaking is right next to you, and moving around very close to you.

The women in the videos whisper, rather than speak, because it has been found to be the most effective way to produce ASMR's characteristic "tingling" sensation. But ASMR videos also include the sounds of people licking, kissing, and rubbing the microphones in various ways -- which may explain that "vulgar use of a microphone controller" the Chinese authorities want to censor. As a representative example, the Abacus News points to a two-hour long YouTube video of one of the ASMR stars in China, Xuanzi Giant 2 Rabbit:

In the video, she speaks softly into an ear-shaped microphone, taps it, covers it in plastic, even rubs a Q-tip inside it, creating a variety of sounds to trigger ASMR.

But she does it while dressed in the revealing outfit of Mai Shiranui from The King of Fighters, and whispers things like "Husband, your highness, do you have any instructions?" In another clip, wearing the same outfit, she strikes a provocative pose on the bed.

ASMR is even referred to as "in-skull orgasm" by many Chinese internet users, highlighting the sexual image of some videos.

It's not hard to see why China's anti-pornography department might want to block this kind of thing. However, as a short video by The New York Times exploring the phenomenon makes clear, mainstream ADMR is rather different from these Chinese variants. The aim is to relax rather than excite, and to tap into what may be a calming physiological response similar to that produced when animals groom each other. In any case, the Chinese attempt to censor ASMR videos seems pretty hopeless:

After hearing about this crackdown, we tried to search by the keyword "ASMR" on some of China's biggest streaming platforms, like Bilibili and Douyu. The searches yielded no results. But the videos still appear if you go directly to the playlists of many ASMR hosts. And since they're not banned in the West, many are available on YouTube.

This probably means we can expect yet another Chinese crackdown on ASMR videos at some point in the future, and yet another failure to eradicate that "vulgar use of a microphone controller".

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Eight years after Minnesota's vague ban on "political" apparel at polling places was first challenged, the Supreme Court has finally struck the ordinance down as unconstitutional. The law allowed election judges to decide whether or not someone's t-shirt or button or whatever sent a "political" message that might somehow sway the vote.

The law covered far more than overt messages about political parties or specific candidates. According to the state's arguments, it could be read as covering anything possibly pertaining to referendum issues and/or issues any political candidate had expressed an opinion on. This lead to a spectacular bit of oral argument [PDF] when the state's lawyer tried to explain what may or may not be covered by the apparel ban.

MR. ROGAN: Well, Your Honor, the political has a -- has a plain meaning in our statute based on that it -- it's influencing elections. What I -- all that I'm describing is that something that is political, for example, that is known to only a few people but is clearly political, is not going to be something that's going to be reasonably understood by voters in the polling place.

JUSTICE ALITO: How about a shirt with a rainbow flag? Would that be permitted?

MR. ROGAN: A shirt with a rainbow flag? No, it would -- yes, it would be -- it would be permitted unless there was -- unless there was an issue on the ballot that -- that related somehow to -- to gay rights.

JUSTICE ALITO: How about a shirt that says "Parkland Strong"?

MR. ROGAN: No, that would -- that would be -- that would be allowed. I think -­ I think, Your Honor -­

JUSTICE ALITO: Even though gun control would very likely be an issue?

MR. ROGAN: To the extent -­

JUSTICE ALITO: I bet some candidate would raise an issue about gun control.

MR. ROGAN: Your Honor, the -- the -­ the line that we're drawing is one that is -­ is related to electoral choices in a -­

JUSTICE ALITO: Well, what's the answer to this question? You're a polling official. You're the reasonable person. Would that be allowed or would it not be allowed? [...]

MR. ROGAN: I -- I think -- I think today that I -- that would be -- if -- if that was in Minnesota, and it was "Parkland Strong," I -- I would say that that would be allowed in, that there's not -­

JUSTICE ALITO: Okay. How about an NRA shirt?

MR. ROGAN: An NRA shirt? Today, in Minnesota, no, it would not, Your Honor. I think that that's a clear indication -- and I think what you're getting at, Your Honor -­

JUSTICE ALITO: How about a shirt with the text of the Second Amendment?

MR. ROGAN: Your Honor, I -- I -- I think that that could be viewed as political, that that -- that would be -- that would be -­

JUSTICE ALITO: How about the First Amendment? (Laughter.)

MR. ROGAN: No, Your Honor, I don't -­ I don't think the First Amendment. And, Your Honor, I -­

CHIEF JUSTICE ROBERTS: No -- no what, that it would be covered or wouldn't be allowed?

MR. ROGAN: It would be allowed.

The point Alito makes is simple: a ban on policitized apparel, especially one written this broadly, is subject to the interpretation of the person making the judgment call, each of which will have their own definition of "political." The state can only argue that some things might always be permissible, but for everything else, it's likely cover up or get cut out of the democratic process.

This exchange is paraphrased in the Supreme Court's decision [PDF], which finds the law too vague and internally inconsistent to be considered constitutional.

The statute does not define the term “political,” a word that can broadly encompass anything “of or relating to government, a government, or the conduct of governmental affairs.” Webster’s Third New International Dictionary 1755. The State argues that the apparel ban should be interpreted more narrowly to proscribe “only words and symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in [the] polling place.” At the same time, the State argues that the category of “political” apparel is not limited to campaign apparel.

The Court considers a State’s authoritative constructions in interpreting a state law. But far from clarifying the indeterminate scope of the provision, Minnesota’s “electoral choices” construction introduces confusing line-drawing problems. For specific examples of what messages are banned under that standard, the State points to the Election Day Policy. The first three categories of prohibited items in the Policy are clear. But the next category—“issue oriented material designed to influence or impact voting”—raises more questions than it answers. The State takes the position that any subject on which a political candidate or party has taken a stance qualifies as an “issue” within the meaning of that category. Such a rule—whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot—is not reasonable.

On top of the that, the law could be read to encompass apparel not even considered remotely "political" until it's being worn by a person trying to vote in Minnesota.

Any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an “issue[] confronting voters in a given election.” For instance, the American Civil Liberties Union, the AARP, the World Wildlife Fund, and Ben & Jerry’s all have stated positions on matters of public concern. If the views of those groups align or conflict with the position of a candidate or party on the ballot, does that mean that their insignia are banned? [...]

Take another example: In the run-up to the 2012 election, Presidential candidates of both major parties issued public statements regarding the then-existing policy of the Boy Scouts of America to exclude members on the basis of sexual orientation. Should a Scout leader in 2012 stopping to vote on his way to a troop meeting have been asked to cover up his uniform?

The state claimed it made clear delineations, all of which somehow were subject to the "reasonable" interpretation of magically-unbiased election judges. As the court points out, the law is capable of defeating the rationale of its own defenders, thanks to its lousy construction.

The State’s “electoral choices” standard, considered together with the nonexclusive examples in the Election Day Policy, poses riddles that even the State’s top lawyers struggle to solve.

It's not impossible to keep a polling place free of overt political messages, but the state legislature's attempt is particularly terrible, expanding the definition of "political" until it can be read to cover almost anything other than a blank t-shirt. The law -- standing since the late 19th century -- is now effectively dead, determined to be too unconstitutional to serve the public as it attends to its democratic duties.

It's always a weird look for companies and IP owners to go after clear expressions of fandom from their customers. And, yet, this sort of thing is done often, with fan get-togethers or festivals regularly being threatened by the IP owners they're fans of. Often times we hear the usual nonsense trademark law excuse that fans must be served with cease and desist letters, or sued, or else the trademark owner will lose its rights. That, as we've discussed repeatedly, is not true, as there are other options available to the trademark holder besides threatening fans.

Warner Bros. has many of the rights to the Harry Potter franchise and the company has not been shy in the past about firing off threat letters to fan groups and festivals. Previously, Warner Bros. has claimed that it only abused fans in this way if there was a commercial aspect to the events. Even under that policy, the legal team for the studio was, shall we say, imperfect. But Warner Bros. has apparently had something of a policy shift that is causing it to go after far more of these fan events, causing Potter fans everywhere frustration and anger.

"It's almost as if Warner Bros. has been taken over by Voldemort, trying to use dark magic to destroy the light of a little town," said Sarah Jo Tucker, a 21-year-old junior at Chestnut Hill College, which hosts a Quidditch tournament that coincides with the annual suburban Philadelphia festival.

Philip Dawson, Chestnut Hill's business district director, said Warner Bros. reached out to his group in May, letting them know new guidelines prohibit festivals' use of any names, places or objects from the series. That ruled out everything from meet-and-greet with Dumbledore and Harry to Defense Against the Dark Arts classes.

"It was very quickly apparent (we) weren't going to be able to hold festivals like years past," he said. The late October festival drew about 45,000 fans last year to the historic neighborhood's cobblestone streets. This year, they will instead have a "wands and wizards" family night and pub crawl and other magic-themed events — and people can still dress as their favorite characters.

As the AP notes, this policy shift is causing these notices to go out to festivals all over the country, each time stating that new policies prohibit this sort of fan-fun at local festivals. As is often the case, Warner Bros. is claiming that trademark law requires it to take these exact actions. Again, this is not true. The studio has many other options, including offering a cheap license to the festivals to allow the fun to go on while having them be officially sanctioned. That it chose not to pursue that course means that Warner Bros. is squarely more interested in being a legal bully than it is in allowing fans of its franchise to celebrate their fandom.

It's an especially stupid track to take, given that these organic fan festivals are certainly in some part responsible for propelling the Potter franchise to the stardom it has now achieved.

Philadelphia Potter fan Sarah McIntyre thinks it's ridiculous for Warner Bros. to target the festivals.

"They are acting like the Dursleys," said the 34-year-old yoga teacher and bookkeeper. She said they should be encouraging communities to bring Harry Potter to life. "Creating interest in the franchise would increase revenue," she said.

How this is not obvious to the folks at Warner Bros. is beyond me. The studio ought to want people talking about the franchise as widely as possible and it's hard to see how fan events at local festivals would do anything other than cause new potential consumers of the franchise to generate some interest in it. As the AP takes pains to note, Warner Bros. is certainly within its rights here, or is at least likely so. But that doesn't make this is a smart business decision, never mind the most optimal outcome for its franchise. Instead, it comes off as purely unfriendly to fans, which is just not a good look for an entertainment product.

Americans tend to be oddly gullible when it comes to megamerger promises. Especially over in the telecom sector. Time after time we're told that the latest major deal will provide all manner of amazing synergies, jobs and added competition. And time after time we subsequently realize that the only people that usually benefit from these deals are investors and executives. Shortly after that, we realize that the slow consolidation and steady erosion in competition results in higher rates and even worse service, something AT&T, Comcast and Charter customers are intimately familiar with after decades of M&A mania.

And yet it's a historical lesson we refuse to learn much of anything from.

The latest megadeal du jour in the telecom space is Sprint and T-Mobile's latest attempt at a $23 billion super-union. The two companies filed their formal sales pitch with the FCC this week, and you'd be hard pressed to find anybody who thinks agency head Ajit Pai and friends won't rubber stamp the deal. The sales pitch is filled with all the usual promises, including the insistence that reducing the overall number of players in the wireless market from four to three will somehow, magically, improve wireless sector competition, a claim I've seen an awful lot of consumers actually buying into:

"New T-Mobile will have the scale and resources to take the Un-carrier movement to the next level and into new market segments. The combined company will have lower costs and the incentives to engage in aggressive pricing to expand its 4G LTE customer base as the industry continues its major transformation towards 5G. To date, T-Mobile and Sprint, individually, have not been able to materially erode Verizon and AT&T’s wireless market share or overcome their scale advantages. New T-Mobile, however, will be able to go toe-to-toe with the two larger rivals to the benefit of competition and consumers.

So the core justification for this deal is that the combined company will more easily be able to compete with AT&T and Verizon, reducing prices for everybody. But that's not how it works, especially in telecom. What really happens is when you reduce the overall number of competitors the incentive to engage in real price competition proportionally declines, resulting in less incentive to actually compete (go ask a Canadian wireless user). This reality is a major reason why both AT&T and Verizon have yet to oppose the deal. They still dominate cell tower backhaul and know this likely means less price competition at retail.

It's also why past regulators have moved to block this very deal and others like it (like AT&T's attempted acquisition of T-Mobile). And you'd be hard pressed to find a single major merger in telecom (be it by Comcast, Charter, AT&T, or CenturyLink) that hasn't made the already marginally-competitive sector worse. This mindless obsession with M&As is a major reason that this sector sees some of the worst customer satisfaction scores of any industry or agency in America (even the IRS). These companies spend so much time growing for growth's sake to please Wall Street, scaling up customer service always lags behind.

Sprint and T-Mobile are also trying to insist that the megadeal will somehow be a huge boon for job creation, another favorite claim of those lost in the throes of M&A mania:

"...the merger will create jobs on New T-Mobile’s first day and going forward. New T-Mobile will hire employees to build the new network; extend the Un-carrier customer care model to a wider subscriber base; and support customers in growing segments like in-home broadband, enterprise, and IoT. New T-Mobile’s increased investment and rapid growth—and resultant accelerated roll-out of 5G services—also will stimulate thousands of additional jobs throughout the U.S. economy.

Here too Sprint and T-Mobile ignore history and factual analysis. Megadeals almost always result in job loss, especially in telecom where countless support, retail, network operations and middle managers will quickly be found to be redundant. The claim also runs in stark contrast to predictions from Wall Street analysts, who believe the deal is likely to eliminate anywhere between 10,000 and 30,000 jobs:

"Merging the companies, said a report by Jonathan Chaplin of New Street Research, could eliminate “approximately 30,000 American jobs” — which is more than Sprint employs.

"We conservatively estimate that a total of 3,000 of Sprint and T-Mobile’s branded stores (or branded-equivalent stores) would eventually close,” (Wall Street analyst Craig Moffett said.

Each of those, he said, would mean the loss of five full time jobs, or 15,000 jobs in total. A merger also would threaten “overhead” jobs, the kind concentrated in headquarters such as Sprint’s and T-Mobile’s in the Seattle area.

And while some like to claim that Sprint will immediately collapse without such a deal (a stretch given it's owned by deep-pocketed Japanese giant SoftBank), there's a myriad of alternative options that would actually increase competition in the space. Comcast and Charter have shown repeated interest in jumping into the wireless space, and a Sprint partnership could prove to be a shortcut. Dish Networks has also routinely proclaimed interest in using its growing spectrum holdings to jump into wireless. Meanwhile, what's the point of "saving" Sprint if the end result is collectively bad for competitors and consumers alike?

It's not entirely clear why America loves to play Charlie Brown and Lucy style football when it comes to megamerger promises. Time and time again we're promised the world, and time and time again we give companies the benefit of the doubt as they promise an ocean of synergies, jobs and competition that never actually materialize. By every indication the millennials that have bought into T-Mobile's consumer friendly (except for opposing that whole net neutrality thing) branding schtick are about to learn their first real lesson on this front the hard way.

As we've been writing over the past few weeks, the EU Parliament's Legal Affairs Committee (JURI) voted earlier today on the EU's new Copyright Directive. Within that directive were two absolutely horrible ideas that are dangerous to an open internet -- a link tax and a mandatory copyright filtering requrement (i.e., the "censorship machines" proposal). While there was a big fight about it, and we heard that some in the EU Parliament were getting nervous about it, this morning they still voted in favor of both proposals and to move the entire Copyright Directive forward. The vote was close, but still went the wrong way:

Somewhat incredibly, no official rollcall tally was kept. MEP Julia Reda, however, has posted an unofficial roll call of who voted against internet freedom, showing (graphically) whether they voted for the link tax and/or censorship machines:

In case you can't see that here's who voted according to Reda's list -- most voted for both of the bad proposals, but for the few who didn't vote for the link tax, I've noted that separately. These politicians deserve to (1) be called out for trying to destroy an open internet and give in to legacy industries who want to censor the internet and (2) voted out of office next election:

• Axel Voss, Germany (who was in charge of this entire thing and who has regularly played dumb whenever people point out just how bad these proposals are. He appears completely beholden to legacy industry interests). Voss's name should become synonymous with the destruction of a free and open internet.
• Pavel Svoboda, Czech Republic (voted for censorship machines, but not the link tax)
• Rosa Estaras Ferragut, Spain
• Tadeusz Zwiefka, Poland,
• Jozsef Szajer, Hungary
• Francis Zammit Dimech, Malta
• Luis de Grandes Pascual, Spain
• Enrico Gasbarra, Italy
• Mary Honeyball, UK
• Jean-Marie Cavada, France
• Marinho e Pinto, Portugal
• Sajjad Karim, UK (voted for censorship machines, but not the link tax)
• Joelle Bergeron, France
• Marie-Christine Boutonnet, France
• Gilles Libreton, France

Note those last two votes from France, as Lebreton and Boutonnet are both members of the French National Front party, the same party whose leader, Marine Le Pen, has been out and about screaming about how unfair it is that the party's YouTube channel was deleted by automatic copyright filters -- the same filters that her own party just voted to make mandatory for all platforms. Incredible.

This is a hugely unfortunate series of events. Having the proposal approved by the JURI Committee makes it much, much harder to stop this Directive from becoming official. But it is not the end of the road. Reda will be forcing a vote from the entire EU Parliament on the issue:

This is an unacceptable outcome that I will challenge in the next plenary session, asking all 750 MEPs to vote on whether to accept the Committee’s result or open it up for debate in that larger forum, which would then give us a final chance to make changes.

This vote will likely happen on July 4. Let’s make this the independence day of the internet, the day we #SaveYourInternet from censorship machines and a link tax. Are you in?

The digital freedom group EDRi has also detailed the next steps in this process and created an infographic showing what still needs to happen:

It will be difficult to stop this freight train after this morning's vote, but not impossible. If you want to see the internet remain viable as a communications platform, rather than seeing it locked down as the new broadcast television, in which giant American companies have the final say in what you're allowed to say online, you should probably let the EU Parliament know sooner, rather than later.

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I've mentioned the idea of the broken windows fallacy -- not to be confused with the long debunked broken windows theory of policing -- twice in the past in reference to net neutrality, including in my recent post about what Ajit Pai should have said about repealing net neutrality. But both times I talked about it, it was kind of buried in much longer articles, and the more I think about it, the more important I think it is in understanding why Pai and his supporters are so far off in their thinking and understanding on net neutrality. What I find most perplexing about this is that people who often position themselves as doing away with overly burdensome regulations -- which is a stance that Pai has staked out pretty clearly -- are usually the kind of folks who talk frequently about the broken windows fallacy. And yet, here, those same folks seem to be missing it.

As background, the broken windows fallacy comes from Frederic Bastiat, the French economist often associated with free market and libertarian thought, and it's his clever and highly evocative way of explaining why destructive behavior -- while it may generate economic activity, is not good for the economy, because it misses all of the other (often hidden) costs, including the opportunity cost of investing that money in more productive activity. Bastiat's version went as follows:

Have you ever witnessed the anger of the good shopkeeper, James Goodfellow, when his careless son has happened to break a pane of glass? If you have been present at such a scene, you will most assuredly bear witness to the fact that every one of the spectators, were there even thirty of them, by common consent apparently, offered the unfortunate owner this invariable consolation – "It is an ill wind that blows nobody good. Everybody must live, and what would become of the glaziers if panes of glass were never broken?"

Now, this form of condolence contains an entire theory, which it will be well to show up in this simple case, seeing that it is precisely the same as that which, unhappily, regulates the greater part of our economical institutions.

Suppose it cost six francs to repair the damage, and you say that the accident brings six francs to the glazier's trade – that it encourages that trade to the amount of six francs – I grant it; I have not a word to say against it; you reason justly. The glazier comes, performs his task, receives his six francs, rubs his hands, and, in his heart, blesses the careless child. All this is that which is seen.

But if, on the other hand, you come to the conclusion, as is too often the case, that it is a good thing to break windows, that it causes money to circulate, and that the encouragement of industry in general will be the result of it, you will oblige me to call out, "Stop there! Your theory is confined to that which is seen; it takes no account of that which is not seen."

It is not seen that as our shopkeeper has spent six francs upon one thing, he cannot spend them upon another. It is not seen that if he had not had a window to replace, he would, perhaps, have replaced his old shoes, or added another book to his library. In short, he would have employed his six francs in some way, which this accident has prevented

Let us take a view of industry in general, as affected by this circumstance. The window being broken, the glazier's trade is encouraged to the amount of six francs; this is that which is seen. If the window had not been broken, the shoemaker's trade (or some other) would have been encouraged to the amount of six francs; this is that which is not seen.

And if that which is not seen is taken into consideration, because it is a negative fact, as well as that which is seen, because it is a positive fact, it will be understood that neither industry in general, nor the sum total of national labour, is affected, whether windows are broken or not.

Now let us consider James B. himself. In the former supposition, that of the window being broken, he spends six francs, and has neither more nor less than he had before, the enjoyment of a window.

In the second, where we suppose the window not to have been broken, he would have spent six francs on shoes, and would have had at the same time the enjoyment of a pair of shoes and of a window.

Now, as James B. forms a part of society, we must come to the conclusion, that, taking it altogether, and making an estimate of its enjoyments and its labours, it has lost the value of the broken window.

When we arrive at this unexpected conclusion: "Society loses the value of things which are uselessly destroyed;" and we must assent to a maxim which will make the hair of protectionists stand on end — To break, to spoil, to waste, is not to encourage national labour; or, more briefly, "destruction is not profit."

In short, breaking windows may generate economic activity for the glazier, but that doesn't count the economic cost to whoever had his window broken, or the opportunity costs of how the money spent on fixing the window could have been fixed.

So how does this apply to net neutrality? Well, Ajit Pai and nearly all of the rather vocal supporters of taking away net neutrality rules continually go back to the claim that the rules harmed broadband infrastructure investment. We'll leave aside the (rather important point) that this claim is not even remotely close to true -- but even assuming it is, it's still a broken windows fallacy.

That's because broadband infrastructure investment is not the entire market, and focusing just on that is the same as just focusing on the economic activity for the glazier created by a broken window. To take this to the extreme case: if we want to stimulate broadband infrastructure investment, just rip up the current internet -- and then we'd need to spend a ton on rebuilding the internet. Yes, that would be the best way to "stimulate" a massive internet infrastructure investment, but the costs to everyone else would be dire.

In the same way, when the FCC focuses just on broadband infrastructure, it is ignoring the costs on everyone else who use the internet. Or, as per Bastiat's story, the FCC is ignoring the costs to the guy whose window is broken as well as all of the opportunity costs from the money he spends on the glazier that doesn't go towards more productive pursuits.

In the net neutrality world, those costs are massive. It is the costs of nearly all internet platforms and services, which now have massive levels of uncertainty about whether or not ISPs will end up abusing their power to limit access (or, more likely, charge for preferred access). It includes the uncertainty of the big broadband companies favoring their own content and service partners to effectively shut out independent services. It includes the costs to the public who have less choice and fewer services that they can use, and who are more locked in to a dwindling number of giant broadband companies.

In short, Ajit Pai's FCC has fallen completely for the broken windows fallacy, by focusing just on one narrow area of economic activity, without even being willing to acknowledge that it will negatively impact a much wider swath of the economy. This is especially disappointing to see, considering that Pai and his supporters keep claiming that they are the ones to "bring economics back" to the FCC, and they are the ones who argued that the Tom Wheeler FCC ignored economics. Yet, when you look at the details, it's Pai and his supporters who seem to be the ones sticking their heads in the sand here and, as Bastiat noted, confining their theory to "that which it seen" and taking "no account of that which is not seen."

In economics this is a pretty 101-level mistake. That the FCC is making it in dismantling a key concept that makes the internet function competitively is particularly disappointing.

When the Facebook, Cambridge Analytica scandal broke, we noted that however bad you thought that scandal was (and it certainly was bad), it couldn't hold a candle to the routine privacy abuses that have occurred in the telecom sector for the better part of the last few decades. From charging consumers hundreds of additional dollars annually to opt out of snoopvertising, to the use of private user financial data to justify providing even worse customer service, the broadband industry has long been the poster child for privacy abuses without much in the way of practical public penalty.

It's just as bad on the wireless side, where carriers like Verizon have routinely have been caught modifying user data packets to track users around the internet (without telling them or providing opt out tools), and selling user browsing, app-usage and location data to everyone that comes calling. That's before you even touch on the fact that these companies are practically bone grafted to the NSA and other intelligence services.

As such, we noted how if you were part of the #DeleteFacebook set but were still rolling around using a stock phone on an incumbent carrier network, you failed to understand that Facebook's casual treatment of private consumer data was the cross-industry norm, not some errant exception.

The Location Smart and Securus scandals (which exposed the data of 200 million cell users) quickly proved our point. Thanks to lax handling of private location data by cellular carriers and third-party brokers, those scandals quickly highlighted how anonymized data isn't really anonymous, and this data can and is routinely abused by everybody in this chain of dysfunction (including law enforcement). Oddly, even in the wake of those reports, people still seemed to view the Cambridge, Facebook fracas as somehow far more scandalous, most likely because of that particular story's political undertones.

Clearly hoping to get ahead of the scandal before the press, public and regulators realized the depths of this particular rabbit hole, Verizon proclaimed that the company would be ending all sales of location data to third party data brokers. The company announced the decision (pdf) in a letter responding to inquiries by Senator Ron Wyden, who had begun to apply some pressure on mobile carriers. From the letter:

"We conducted a comprehensive review of our location aggregator program. As a result of this review, we are initiating a process to terminate our existing agreements for the location aggregator program. We will not enter into new location aggregation arrangements unless and until we are comfortable that we can adequately protect our customers’ location data through technological advancements and/or other practices."

Verizon announced it would be suspending all data sales to location data brokers like LocationSmart and Zumigo, which the company acknowledged sold that data in turn to a roster of more than 75 different companies. And, in short, it's promising to suspend such data sales at least until it can ensure that data is actually secure (what an incredibly novel idea). Who'll actually confirm this data is secure before the program is restarted isn't clear; you'll apparently just have to trust a company with a several-decades history of severe privacy violations and blatant false statements.

Like the Facebook scandal, there wasn't much in place to really ensure that often real-time data remained protected, something made clear when the LocationSmart scandal revealed that one Missouri Sheriff routinely (ab)used the system to spy on Judges and fellow law enforcement officers without much legitimate justification (or pesky warrants). In subsequent statements to the press, Verizon has tried to argue that the company quickly took steps to thwart the abuse:

"When these issues were brought to our attention, we took immediate steps to stop it. Customer privacy and security remain a top priority for our customers and our company. We stand-by that commitment to our customers."

But again, this was Verizon only acting after the horses escaped from the barn, suggesting that no, privacy and security was not a top priority. If Verizon's self-auditing was so stellar, it seems curious it never self-identified the potential for the kind of abuse the LocationSmart and Securus scandals revealed. Or the self-audits did reveal problems, but the money made from selling this data made actually fixing them a low priority. Knowing Verizon pretty well, it seems clear it wouldn't be taking this kind of financial hit if its lawyers didn't realize the company was potentially facing some pretty steep penalties here.

One of the key problems in location and other data sharing is that wireless cell carriers have found a way to effectively operate outside any meaningful privacy guidelines by perpetually passing the onus for user consent down a long line of location data aggregators. Blake Reid, an associate clinical professor at the University of Colorado School of Law, perfectly captures the problem in comments made to Brian Krebs:

"The carriers basically have arrangements with these location aggregators that contractually say, ‘You agree not to use this access we provide you without getting customer consent’,” Reid said. “Then that aggregator has a relationship with another aggregator, and so on. So what we then have is this long chain of trust where no one has ever consented to the provision of the location information, and yet it ends up getting disclosed anyhow."

Verizon's obviously trying to pre-empt privacy regulation before we collectively realize current oversight makes the wild west seem downright domesticated. The company has long fought tooth and nail against any kind of consumer privacy protections, stating back in 2008 that federal privacy rules aren't necessary because "public shame" would keep the company honest. More recently, Verizon successfully lobbied the FCC to kill modest broadband privacy rules that would have prevented precisely this kind of scandal from happening by requiring greater transparency -- and that users opt-in to more sensitive data sharing.

None of that is to say that regulatory action is the only solution here, or that this particular Congress could even accomplish such a task. But it's also pretty clear that sooner or later, the pinky swears and winks currently passing for oversight of the telecom sector's treatment of your private data aren't going to quite cut it.

Shortly after Verizon's announcement AT&T stated that it too had suspended location data sales to third-party brokers (for all the same reasons). Sprint followed suit. T-Mobile, which cultivates a reputation as a more consumer-friendly wireless carrier, belatedly brought up the rear, initially likely wary of highlighting any missteps as it seeks regulatory approval for its looming competition eroding megamerger. But again, most of these promises were somewhat murky in scope (T-Mobile's promise to improve, for example, was entirely devoid of substance and somehow never reached Wyden's office).

With this data having bounced around so many partners with so little transparency or oversight, you can be pretty sure we haven't heard the end of this story. And while wireless carriers would very much like the public and press to believe that they've fixed the privacy problems that plague the telecom sector, several decades of evidence to the contrary -- and the press and public's general tone deafness to the scope of this particular problem -- suggest any meaningful reckoning is still likely some time away.