The First Amendment covers a whole lot of area. Since it covers "expression," it doesn't necessarily have to be anything commonly thought of as "speech." It doesn't have to be printed. It doesn't have to be said. Lighting a flag on fire requires no statement of intent. The act itself is expressive enough. Passively gathering information (like recordings or public records) is protected by the First Amendment. Taking photos is a protected act, even if the photos are never used to express anything more than a memory of an event or place.

It has been argued nudity or partially-exposed bodies are expressions deserving of protection by the First Amendment. Exotic dancers and "bikini barristas" have engaged in multiple free speech lawsuits targeting allegedly unconstitutional restrictions on their expressive conduct.

A plaintiff currently suing a sheriff and the head of the California Highway Patrol is arguing that honking a car horn is protected speech and that the citation she received after engaging in this expression is unconstitutional. (via Courthouse News)

Susan Porter was driving by a protest held outside of Rep. Darrell Issa's office. These frequent demonstrations gathered both protesters and counter-protesters, all of who made plenty of noise. Passing traffic would express their support/displeasure for Issa by honking their horns. (Which would make not honking your horn similarly protected expression, although it's unlikely anyone would be cited for not honking their horn while driving by a protest.)

The demonstation briefly attended by Porter drew the attention of local law enforcement, who showed up to hand out citations to protesters. Porter was parked in a nearby parking lot. When the cops showed up, Porter decided to clear out. As she drove away past the protesters and newly-arrived law enforcement officers, she sent off one last car horn blast of support. Cue unneeded officer involvement. From the lawsuit [PDF]:

After Ms. Porter sounded her horn in support of the protest, Sheriff's Deputy K. Klein ("Deputy Klein"), ID. Number 7275, directed Ms. Porter to pull over.

Deputy Klein told Ms. Porter she was pulled over for sounding her vehicle horn, and issued her a citation for alleged violation of Vehicle Code 27001, which states that "[t]he driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his horn," but "[t]he horn shall not otherwise be used, except as a theft alarm system" (emphasis added). Cal. Veh. Code 27001.

Section 27001 does not require that the use of a horn meet any specified noise level, disturb the peace, distract drivers or pedestrians, or endanger safety.

[...]

Ms. Porter's citation… states that the citation was for violation of "27001(A) cvc [sic] -- unreasonable use of horn" and contains no allegations as to noise level, disturbing the peace, distracting drivers or pedestrians, or endangering safety.

It looks like Deputy Klein didn't like being honked at (though he wasn't) by some protester slipping away from the scene of the crime in her vehicle and tagged her with a "don't fuck [with] the police" ticket. I'm sure he never expected his department would be named in a civil rights lawsuit, but that's the sort of thing that happens when the law is used in ways it shouldn't be. If these law enforcement officers were that concerned about horn noise, all they had to do was camp out outside Issa's office and hand out horn tickets all day long. But law enforcement is never about consistent enforcement. It's highly selective and sometimes the law that ends up being enforced isn't the one officers had in mind when they initiated the stop. (But that's a completely different amendment.)

In this case, her honked horn wasn't a violation of the law, but rather her way of "convey[ing] a message of support for the protest." But it was also a violation of the law, if officers wanted to get technical. And Deputy Klein certainly did.

Selective enforcement of seldom-enforced laws around demonstrations and protests is a great way to rack up civil liberties violations and their attendant lawsuits. Porter claims the deputy's decision to enforce the states horn ordinance out of the blue creates a chilling effect for politically-inclined drivers like herself.

Ms. Porter regularly drives her vehicle in areas of San Diego County and the State of California where the Sheriff's Department or California Highway Patrol is responsible for traffic enforcement.

In driving her vehicle in those areas, Ms. Porter observes rallies, protests, demonstrations, or other events for which she would like to express her support through use of her vehicle horn.

Given the citation issued to her and her knowledge of the statute, Ms. Porter reasonably fears that the Sheriff's Department or California Highway Patrol will enforce section 27001 against her if she uses her vehicle horn for such expressive purposes.

As a result, Ms. Porter is censoring herself by refraining from using her vehicle horn for expressive purposes, including but not limited to expressing support for political protests, rallies, or demonstrations.

It seems like a ridiculous legal hill to die on, but it does raise a valid point: if officers are going to use a horn ordinance to selectively punish supporters of certain causes, the state is basically placing itself between residents and their ability (however limited its usefulness in this particular application) to petition their government.

This will make for an interesting case. Porter isn't alleging anything but an ongoing First Amendment controversy due to the state's restriction on horn use. The state will likely claim the public is served by a law that discourages people from blowing their horns whenever they damn well please, but those arguments are going to sound kind of ridiculous when actually verbalized. Is a law really necessary to keep horns from blaring constantly? Or has it long been accepted horns do double-duty as expressive speech, delivering pithy messages like "You suck at driving," "You suck in general," "Your ride is here," and "I heartily approve/disapprove of this issue being debated freely in the marketplace of ideas, which is apparently located at Rep. Issa's office at the moment."

Whatever the basis for the law, it was pretty clearly used here to express a law enforcement officer's distaste for the message conveyed by Porter, even if the message the deputy received was "I support the people you're currently citing for other legal violations," rather than the one Porter intended to send. Since it would be almost impossible to carve out a protest-only waiver on horn restrictions, the court either has to find the law unconstitutional in whole or decide it can be selectively used to punish ostensibly political speech. However it decides to handle this, it should be a fun case to watch.

The cable & broadcast industry has gone to some pretty absurd lengths to avoid having to adapt to the cord cutting era. As ad-skipping DVRs started to become popular, the industry's response wasn't to embrace natural evolution, it was to file a bunch of lawsuits and creatively harass companies that were trying to give consumers what they wanted. Similarly, as cord cutting has grown thanks to sky-high prices and ad break fatigue, the industry's overall response was to first raise prices like it was going out of fashion, then try to speed up or edit down programs in the hopes of shoving more ads into each viewing hour.

None of these "solutions," you'll be shocked to learn, actually slowed down the sector's evolution or the exodus of cable TV consumers to more flexible, less costly streaming alternatives. Alternatives that are, you'll note, actually listening to users and giving them what they're asking for (usually).

More recently, we've seen broadcast and cable executives begrudgingly admit that they can't just keep doubling down on the same dumb ideas and expect a better outcome. As a result, we've seen some broadcasters experiment with lower advertising loads during prime time. And we're also seeing to see the industry get a little more creative as to what modern advertising actually means, even if many of these offerings aren't likely to solve the problem either.

For example, NBC has pondered bringing back the bygone era of product placement, something that can easily go wrong if handled poorly. Similarly, Fox outlets like Fox Broadcasting, FX, at the National Geographic channel announced this week that they'll soon start experimenting with replacing ads with short "inspirational videos" funded by the pharmaceutical and insurance sectors:

"Starting this fall, Fox outlets like Fox Broadcasting, FX, Nat Geo and their digital counterparts will begin running inspirational videos that tell stories about people who have overcome adversity. These tales won’t take part over the course of 22 episodes, but will instead show up during advertising time, and Fox hopes to get marketers to sponsor them. Pharmaceutical companies, sports advertisers, insurance marketers and wellness firms are viewed as potential candidates that might consider attaching their names to vignettes of various lengths about people triumphing over cancer, the loss of a limb, or even blindness."

Executives at Fox are calling these "inspirational vignettes" or "unbreakables," in that they're supposed to keep the viewer's attention fixed to the screen:

"Fox is expected to unveil the idea for the inspirational vignettes, known as “Unbreakables,” Monday at the Cannes Lions advertising festival in France. “As part of our relentless pursuit of providing the best viewing experience and the highest performance for marketers, we are turning ad time into brand storytelling time,” says Michael Shields, senior vice president of sales strategy for Fox Networks Group, in a statement."

Short stories funded by major corporations seeded between programming sound a lot like... advertisements. And while you have to credit the industry for actually trying something new, this will do nothing to thwart cord cutting if the content in question isn't actually compelling. We've talked in the past about how good content is advertising and how good advertisements should be good content -- but do you really think that what comes out of this will be good content?

A better option for the cable and broadcast sector is to finally acknowledge that the cash-cow cable TV days of yesteryear are gone, they're not coming back, and that cable operators and broadcasters are going to have to actually try and compete now. That's going to require competing on price, service flexibility and customer service (gasp) instead of just doubling down on bad behavior. Many cable and broadcaster execs have grown so pampered from years of cozy deals and muted, "wink wink" style non-price competition that they're under the false impression that they have any real say in the matter.

But that's how competition works. You don't much have a choice in the matter, and you can either adapt your business model to the new paradigm, or you can slowly but surely become an outdated relic surpassed by more nimble, flexible companies that actually provide what the customers want. Better ads are certainly part of that equation, but they're only a small portion of what's wrong with the traditional cable TV model.

In the wake of Snowden's revelations of the scale of mass surveillance around the world, various cases have been brought before the courts in an attempt to stop or at least limit this activity. One involved Sweden's use of bulk interception for gathering foreign intelligence. A public interest law firm filed a complaint at the European Court of Human Rights (ECtHR). It alleged that governmental spying breached its privacy rights under Article 8 of the European Convention on Human Rights (pdf). The complaint said that the system of secret surveillance potentially affected all users of the Internet and mobile phones in Sweden, and pointed out that there was no system for citizens to use if they suspected their communications had been intercepted. The ECtHR has just ruled that "although there were some areas for improvement, overall the Swedish system of bulk interception provided adequate and sufficient guarantees against arbitrariness and the risk of abuse":

In particular, the scope of the signals intelligence measures and the treatment of intercepted data were clearly defined in law, permission for interception had to be by court order after a detailed examination, it was only permitted for communications crossing the Swedish border and not within Sweden itself, it could only be for a maximum of six months, and any renewal required a review. Furthermore, there were several independent bodies, in particular an inspectorate, tasked with the supervision and review of the system. Lastly, the lack of notification of surveillance measures was compensated for by the fact that there were a number of complaint mechanisms available, in particular via the inspectorate, the Parliamentary Ombudsmen and the Chancellor of Justice.

When coming to that conclusion, the Court took into account the State's discretionary powers in protecting national security, especially given the present-day threats of global terrorism and serious cross-border crime.

One expert in this area, TJ McIntyre, expressed on Twitter his disappointment with the judgment:

It might have been too much to expect bulk intercept ruled out in principle, but it is surprising to see a retreat from existing standards on safeguards.

McIntyre played a leading role in one of the key cases brought against mass surveillance, by Digital Rights Ireland in 2014. It resulted in the EU's top court, the Court of Justice of the European Union (CJEU), ruling the EU's Data Retention Directive was "invalid". As McIntyre notes, the detailed ECtHR analysis mentions the CJEU decision, but not the more recent ruling by the latter that struck down the "Safe Harbor" framework because of mass surveillance by the NSA.

The judgment significantly waters down safeguards previously developed by the ECtHR in relation to notification and possibility of a remedy against unlawful surveillance.

For example, McIntyre points out the ECtHR accepted that it is necessary for the Swedish signals intelligence service to store raw material before it can be manually processed:

Remarkably weak controls on storage and downstream use of intercept material were accepted by the ECtHR -- in particular, it was satisfied with retention of bulk intercept "raw material" for one year!

Something of a setback in terms of limiting mass surveillance, the latest judgment goes against the general trend of decisions by the arguably more important CJEU court. In 2014 the latter effectively ruled that its own decisions should take precedence over those of the ECtHR if they came into conflict. That is now more likely, given the CJEU's hardening position against mass surveillance, and the diverging judgment from the ECtHR, which shows some softening.

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Last month, at the COMO Content Moderation Summit in Washington DC, I co-ran a "You Make the Call" session with Emma Llanso from CDT. The idea was to turn the audience into a content moderation/trust & safety team of a fictionalized social media platform. We showed numerous examples of content or accounts that were "flagged" and then showed the associated terms of service, and had the entire audience vote on what to do. One of the fictional examples involved someone posting a link to a third-party website "contactinfo.com" claiming to have the personal phone and email contact info of Harvey Weinstein and urging people "you know what to do!" with a hashtag. The relevant terms of service included this: "You may not post personal information about others without their consent."

The audience voting was pretty mixed on this. 47% of the audience punted on the question, choosing to escalate it to a supervisor as they felt they couldn't decide whether to leave the content up or take it down. 32% felt it should just be taken down. 10% said to just leave it up and another 10% said to put a content warning flag on the content. We joked a bit during the session that some of these examples were "ripped from the headlines" but apparently we predicted the headlines in this case, because there are two stories this week that touch on exactly this kind of thing.

Example one is the story that came out yesterday, in which Twitter chose to start locking the accounts of users who were either tweeting Trump senior advisor Stephen Miller's cell phone number, or merely linking to a Splinternews article that published his cell phone number (which I'm guessing has since been changed...).

Splinternews decided to publish Miller's phone number after multiple news reports attributed the inhumane* decision to separate children of asylum seekers from their parents to Miller, who has defended the plan. Other reports noted that Miller is enjoying all of the controversy over this policy. Splinternews, citing Donald Trump's own history of giving out the phone numbers of people who anger him, thought it was only fair that people be able to reach out to Miller.

This is -- for fairly obvious reasons -- a controversial decision. I think most news organizations would never do such a thing. Not surprisingly, the number spread rapidly on Twitter, and Twitter started locking all of those accounts until the tweets were removed. That seems at least well within reason under Twitter's rules that explicitly state:

You may not publish or post other people's private information without their express authorization and permission.

But, that question gets a lot sketchier when it comes to locking the accounts of people who merely linked to the Splinternews article. A la our fictionalized example, those people are not actually publishing or posting anyone's private info. They are posting a link to a third party that purports to have that information. And, of course, in this case, the situation is complicated even more than our fictionalized example because Splinternews is a news organization (owned by Univision), and Twitter also has said that it has a "newsworthy" exception to its rules.

Personally, I think it's the wrong call to lock the accounts of those linking to the news story, but... as we discovered in our own sample version, it's not an easy call and lots of people have strong opinions one way or the other. Indeed, part of the reason why Twitter may have decided to do this was that supporters of Trump/Miller started calling out the article as an example of doxxing and claiming that leaving it up showed that Twitter was unfairly biased against them. It is a no win situation.

And, of course, it wouldn't take long before people started coming up with clever workarounds, such as Parker Higgins (citing the infamous 09F9 controversy in which the MPAA tried to censor the revelation of a cryptographic key that broke the MPAA's preferred DRM, and people responded by posting variations on the code, including a color chart in which the hex codes of the colors were the code), who posted the following:

Would Twitter lock his account for posting a two color image? At some point, the whole thing gets... crazy. That's not to argue that revealing someone's private cell phone number is a good thing -- no matter how you feel about Miller or the border policy. But just on the content moderation side, it puts Twitter in a no win situation in which people are going to be pissed off no matter what it does. Oh, and of course, it also helped create something of a Streisand Effect. I certainly hadn't heard about the Splinternews article or that people were passing around Miller's phone number until the story broke about Twitter whac'ing at moles on its site.

And that takes us to the second example, which happened a day earlier -- and was also in response to people's quite reasonable* anger about the border policy. Sam Lavigne decided to make something of a public statement about how he felt about ICE by scraping** LinkedIn for profile information on everyone who works at ICE (and who has a LinkedIn public profile). His database included 1595 ICE employees. He wrote a Medium blog post about this, posted the repository to Github and another user, Russel Neiss, created a Twitter account (@iceHRgov) that tweeted out info about each of those employees from that database. Notice that none of those are linked. That's because all three companies took them down (though you can still find archives of the Medium post). There was also an archive of the Github repository, but it has since been memory-holed as well.

Again... this raises a lot of questions. Github claimed that it removed the page for "violating community guidelines" -- specifically around "doxxing and harassment, and violating a third party's privacy." Medium claimed that the post violated rules against "doxxing" and specifically the "aggregation of publicly available information to target, shame, blackmail, harass, intimidate, threaten or endanger." Twitter, in Twitter's usual way, is not commenting. LinkedIn put out a statement saying: "We do not support or condone what immigration authorities are doing at the border, but we can’t allow the illegal use of our member data. We will take appropriate action to ensure our members’ data is protected and used properly."

Many people point out that all of this feels kind of ridiculous, seeing as this is all public info that the individuals chose to reveal about themselves on a public website. While Medium's expansive definition of doxxing makes things interesting by including an intent standard in releasing the info, even if it is publicly available, the whole thing, again, demonstrates how complex this is. I know that some people will claim that these are easy calls -- but, just for fun, try flipping the equation a bit. If you're anti-Trump, how would you feel if a prominent alt-right person compiled and posted your info -- even if publicly available -- on a site where alt-right folks gather, with the clear intent of having hoards of Trump trolls harassing you. Be careful the precedent you set.

If it were up to me, I think I would have come down differently than Medium, Github and Twitter in this case. My rationale: (1) all of this info was public information (2) that those individuals chose to place on a public website, knowing it was public (3) they are all employed by the federal government, meaning they are public servants and (4) while the compilation was done by someone who is clearly against the border policy, Lavigne never encouraged or suggested harassment of ICE agents. Instead, he wrote: "While I don’t have a precise idea of what should be done with this data set, I leave it here with the hope that researchers, journalists and activists will find it useful." He separately noted that he believed "it's important to document what's happening, and by whom." That seems to actually make a strong point in favor of leaving the data up, as there is value in documenting what's happening.

That said, reasonable people can disagree on this question (even if there should be no disagreement about how inhumane the policy at the border has been*) of what is the appropriate way for different platforms to handle these situations -- taking into account that this situation could play out with very different players in the future, and there is value in being consistent.

This is the very point that we were demonstrating with that game that we ran at COMO. Many people seem to think that content moderation decisions are easy: you just take down the content that is bad, and leave up the content that is good. But it's pretty rare that the content is easily classified in one of those categories. There is an enormous gray area -- and much of it involves nuance and context, which is not always easy to come by -- and which may look incredibly different depending on where you sit and what kind of world you think we live in. I still think there are strong arguments that the platforms should have left much of the content discussed in this post up, but I'm not the one making that call.

When we ran that game in DC last month, it was notable that on every single example we used -- even the ones we thought were "easy calls" -- there were some audience members who selected every option in the game. That is, there was not a single situation in our examples in which everyone agreed what should be done. Indeed, since there were four options, and all four were chosen by at least one person in every single example, it shows just how difficult it really is to make these calls. They are subjective. And what plays into that subjective decision making includes your own views, your own perspective, your own reading of the content and the rules -- and sometimes third party factors, including how people are reacting and what public pressure you're getting (in both directions). It is an impossible situation.

This is also why the various calls to mandate that platforms do this or face legal liability are even more ridiculous and dangerous. There are no "right" answers to these decisions. There are solutions that seem better to lots of people, but plenty of others will disagree. If you think you know the "right" way that all of these questions should be handled, I guarantee you're wrong, and if you were in charge of these platforms, you'd end up feeling just as conflicted as well.

This is why it's really time to start thinking about and talking about better solutions. Simply calling on platforms to be the final arbiters of what goes online and what stays offline is not a workable solution.

* Just a side note: if you are among the small minority of ethically-challenged individuals who gets upset that I describe the policy as inhumane: fuck off. The policy is inhumane and if you're defending it, you should seriously take time to re-evaluate your ethics and your life choices. On a separate note, if you are among the people who are then going to try to justify this policy as "but Obama/others did it too," the same applies. Whataboutism is no argument here. The policy is inhumane no matter who did it, and pointing out that others did it too doesn't change that. And, as inhumane as it may have been in the past, it has been severely ramped up. There is no defense for it. Attempting to defend it only serves to out yourself as a horrible person who has issues. Seriously: get help.

** This doesn't even fit anywhere in with this story, but scraping LinkedIn is (stupidly) incredibly dangerous. Linkedin has a history of suing people for scraping public info off of LinkedIn. And even if it's lost some of those cases, the company appears to take a pretty aggressive stance towards scrapers. We can argue about how ridiculous this is, but, dammit, this post is already too long talking about other stuff, so discuss it separately.

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The US government has taken down another alleged leaker. Joshua Schulte, a former NSA and CIA operative, had his apartment raided by the feds last March. The raid targeted documents showing Schulte had leaked CIA hacking tools to Wikileaks (the "Vault 7" collection). But it uncovered a whole lot of child porn -- 10,000 images on Schulte's personal computer and his file-sharing server that held another 5 terabytes of data.

The first criminal complaint [PDF] by the DOJ contained nothing but child porn charges. It suggests the former government spook didn't practice much opsec when not on the clock. One IRC chat shows Schulte's aware encryption is sometimes only a temporary deterrent if the government really wants to find out what's been sent or shared. But then he apparently went on to provide the government with some easily-accessible evidence.

Based on my review of those Google Searches, I have learned, among other things, that on a number of occasions in or about 2011 and in or about 2012, SCHULTE appeared to search the Internet for child pornography. For example: (i) on or about April 9, 2011, SCHULTE conducted a Google Search for "child pornography" on at least three occasions; (ii) on or about October 15, 2011, SCHULTE conducted Google Searches for "movie where father videos daughter and friend sex" and "movie where father videos child porn"; and (iii) on or about May 15, 2012, SCHULTE conducted a Google Search for "female teenage body by year."

The recently-released superseding indictment [PDF] really starts stacking the charges. In addition to the child porn charges carried over from the original complaint, the government adds charges related to the leaked hacking tools, including unauthorized access with the intent of gathering classified info and theft of government property.

Then the charges get interesting. Schulte is charged with "causing transmission of a harmful computer program" for allegedly altering an intelligence agency "computer system" to give himself access to restricted areas of the system and cover up any evidence he had accessed these files. Apparently, this alteration resulted in other users being denied access.

There's the expected "lying to the feds" charges (making false statements, obstruction of justice) which show Schulte was very cooperative when being questioned about the child porn but apparently not so much when asked about purloined CIA data.

Rolling past the copy-pasted child porn charges, one reaches the most unexpected charge in the indictment: criminal copyright infringement.

From at least in or about September 2015, up to and including at least in or about August 2017, in the Southern District of New York and elsewhere, JOSHUA ADAM SCHULTE, the defendant, unlawfully, willfully, and knowingly did infringe copyrights by the reproduction and distribution, including by electronic means and by making it available on a computer network accessible to members of the public, during a 180-day period, of ten and more copies and phonorecords, of one and more copyrighted works, which had a total retail value of more than $2,500, to wit, without authorization, SCHULTE maintained a computer server that housed thousands of copyrighted movies, television shows, and audio recordings, which SCHULTE shared with others by electronic means and using the Internet.

This appears to refer to the server Schulte set up for IRC chat buddies. It's mentioned in a couple of chat transcripts and was, until 2017, accessible at cryptm.org. There's plenty archived at the Wayback Machine [click at your own risk, I suppose] but this server seems to be the source of the copyright infringement charge. Whether or not any of these files were actually downloaded isn't clear, but they were uploaded and accessible to site visitors. This short list of a small portion of the files hosted by Schulte on his server was put together by Jason Koebler and Lorenzo Franceschi-Bicchierai of Motherboard.

An archived version of his page there shows that he had files related to chess, an episode of South Park, a copy of The 40 Year Old Virgin, textbooks, C Programming textbooks, and a folder called “Facebook Convos.”

Speaking of Facebook, Schulte was apparently maintaining a diary of his criminal justice system experience. (Spoiler alert: it's unpleasant and broken.) The documents are worth reading for a firsthand look at the federal arraignment process and the unpleasant realities of being sentenced to house arrest (with no internet access privileges) while still supposedly an "innocent" person in the eyes of the Constitution. It does get a little weird when he claims he's only been charged with "victimless" crimes given what he's been charged with (leaking CIA hacking tools, child porn). But nothing's been proven beyond a reasonable doubt at this point, so maybe only the copyright infringement charge that will make the final cut.

As Parker Higgins points out on Twitter, this supremely weird addition should be viewed with apprehension. Copyright infringement happens all the time. Much of it has zero profit motive, but the government is apparently more than willing to selectively enforce this law if it seems it might push someone towards a plea deal and save it the trouble of having to prove its case.

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.