This Week In Techdirt History: June 26th – July 2nd

Techdirt

from the back-in-the-day dept

Five Years Ago

This week in 2017, Zillow got very angry about the McMansion Hell blog and sent a ridiculous legal threat, then followed up with a second equally wrong letter, then finally kinda-sorta backed down a little bit after the EFF got involved. The copyright office was recognizing that the DMCA is a problem for security research, and also somewhat inadvertently admitted that the law is more about giving Hollywood control than stopping infringement. We also saw one of the worst approaches to patent reform imaginable in Senator Coons’s STRONGER Patent Act.

Ten Years Ago

This week in 2012, Miami Heat owner Ranaan Katz sued Google and a blogger claiming copyright infringement over an unflattering photo, then doubled down and threatened to sue the lawyer defending the blogger. The EU Commissioner revealed he planned to simply ignore any rejection of ACTA by the European Parliament, and Parliamentarian Marielle Gallo called ACTA dissent “a soft form of terrorism”, while Australia’s parliament committee issued its recommendation to reject the deal. Meanwhile, the USTR was giving the MPAA full access to the TPP text while still refusing to share it with Senate staffers and denying Rep. Issa’s request to observe negotiations, while still ridiculously claiming it was being transparent.

Fifteen Years Ago

This week in 2007, Senator Feinstein was seeking some sort of return of the Fairness Doctrine, and was soon joined by Senator Durbin. Attorney General Alberto Gonzales was still focused on throwing people in jail for attempted piracy, the MPAA was suing sites for linking to infringing content, a new case against the RIAA asked questions about the legality of its investigation techniques, and we saw what happens without safe harbor protections as an Australian ISP deleted all user multimedia files.

Filed Under: history, look back

U.S. Appeals Court: Amazon Has To Go To Trial To See If Public Will Confuse Fire TV Streaming With Porn

Trademark

from the fyred-up dept

Sigh, here we go. Back in 2014, Wreal LLC filed a trademark infringement suit against Amazon. Why? Well, Wreal has a product called FyreTV that it describes as “the Netflix of porn.” Amazon has a streaming service for decidedly non-pornographic content called Fire TV. Wreal came into court armed with a couple of social media posts basically poking fun at the two names and tried to paint that as real or potential confusion in the marketplace. The case has gone through many twists and turns over the past 8 years, including the district court tossing the suit in 2019 because of the stark differences in the products and types of services being offered. From there, Wreal appealed.

Notably, there was a list of “undisputed facts” in the ruling that pretty much lay out everything anyone should need to know about all of this:

Wreal has lost money every year from its founding in 2007 to the present.

Wreal’s FyreTV.com homepage shows several rows of highly explicit pornographic images.

Amazon markets the Amazon Fire TV’s family-friendly features, advertising that the “FreeTime” service “revolutionizes parental controls – parents can choose what your kids see and set time limits for types of content and times of day.”

Wreal does not believe its use of the “Netflix” mark infringes any trademarks because it believes Netflix operates in a different market.

That last one is perhaps the most important, because if Wreal’s use of Netflix doesn’t infringe on Netflix’s trademark because they operate in different markets, then the exact same thing is true of Amazon’s Fire TV. Yet, somehow, the U.S. Appeals Court has granted Wreal its trial.

The 11th U.S. Circuit Court of Appeals said a jury could find that Amazon’s product was likely to cause consumer confusion with Wreal’s porn-streaming service, and that a Miami federal judge should not have ruled for Amazon before a jury could hear the case.

A unanimous three-judge panel noted that the products’ names were nearly identical, there was evidence that Amazon had purposely flooded the market with its trademark to drown Wreal’s out, and a reasonable consumer could think that Amazon had expanded into Wreal’s field of streaming hardcore pornography.

The panel noted, perhaps more cogently, that this was treated by the lower court more like a traditional “likelihood of confusion” case, in which the later entrant is trying to draft off the name recognition of the larger original trademark holder. But that this case was different — in that it was a “reverse confusion” case, in which the latter entrant is much bigger and more well known, and clearly isn’t trying to leverage the mark’s recognition, but rather to squeeze the original mark holder out of the market. As the Court notes in its ruling:

In a reverse-confusion case, the harms that can occur are varied. For example, consumers may come to believe the smaller, senior user of the mark is itself a trademark infringer

As such, the Court argues, different tests should apply for the likelihood of confusion.

But the other reasons for granting this trial on appeal are just plain silly. Going to FyreTV is going to bombard you with porn on its homepage. Someone would have to very much believe that Amazon had suddenly expanded into the extremely hardcore pornography industry for there to be any sort of confusion. The Appeals Court indicates that a jury may find that way. I would fear for any jury that did so, as I’d would openly wonder how that jury managed to tie its shoes in the morning.

But now this goes to trial (assuming no settlement in the interim). And hopefully a jury will show that there is no way that there is any likelihood of confusion, even “reverse confusion.”

Filed Under: 11th circuit, fyretv, likelihood of confusion, porn, reverse confusion, streaming, trademark
Companies: amazon, wreal

Court To Litigants: A City Taking Down Its Own Statue Doesn’t Violate Your First Amendment Rights

Too Much Free Time

from the because-duh dept

Some days, it has got to suck to be a judge. Well, actually a lot of days. Most judicial work is tedious, including contractual disputes or bankruptcy proceedings or maritime law or any dozens of other aspects of litigation that would put most people to sleep.

On other days though, it’s a particular kind of annoying. It’s like working for the world’s worst boss, someone who makes ridiculous requests and expects you to take them seriously.

This case, brought to us by the Volokh Conspiracy, involves deeply unserious people with patently ridiculous arguments. And it’s all handed by the federal court judge like it’s the most legitimate thing to ever land on Judge Janet Hall’s docket.

The First Amendment lawsuit was filed by the “American Italian Women for Greater New Haven” (referred to as “AIW” in the decision). It concerns the city’s decision to remove a statue of Christopher Columbus from Wooster Square, a public park in the city. The city owned the park and the city owned the statue.

Christopher Columbus — an Italian long revered for his supposed “discovery” of lands already populated by indigenous people — has seen his reputation dim considerably over the last couple of decades. This has resulted in similar actions all over the nation, as Columbus’ reputation as a colonizing racist superseded his inexplicably popular failure to locate any part of Asia’s 17.21 million square miles.

The AIW found this move to be reprehensible. And not just reprehensible, but unconstitutional. The statue — a gift to the city from 200 Italian immigrants in 1892 — represented something more to the group than a tribute to a questionable historical figure. According to AIW’s complaint, the group met in the square often to recruit new members, participate in activities, and conduct an annual wreath-laying at the base of the statue.

So, where does the First Amendment violation start happening when a city removes its own property? It’s difficult to tell. But the opinion [PDF] does give us a look at the ridiculous assertions made by the Italian women’s group.

According to AIW, the decision to remove the Columbus statue arose from the City’s “pro-African American/anti-Italian American policy”, a policy that the City deliberately “established and perpetuated.”

This imagined policy is the basis for several claims, including discrimination (against Italians, I guess?), due process violations (because the AIW was not allowed to vote on the removal, I guess?), and the First Amendment violation because… well, that’s what the AIW wrote down in their complaint.

The court decides AIW (barely) has standing to bring the lawsuit, based solely on the “wreath-laying ceremony” that occurs at the base of the statue. But having standing to pursue a lawsuit doesn’t necessarily mean there’s anything actionable to pursue.

All the rest of the AIW’s activities could still be performed in the park with or without the statue. And, as the plaintiffs admit (which undercuts their discrimination claims), they have never been refused access to the park. Plus, the statue was made unavailable to everyone, not just Italian-Americans residing in New Haven.

There’s no due process claim to be had, either. Even if accepted as true, the allegation that the city somehow failed to allow residents to vote on the decision to remove the statue doesn’t work because the group did not have any property interest in a statue erected and owned by the city.

And that leads directly to this blunt dismissal of the group’s truly bizarre First Amendment claim.

Finally, in Count Four, AIW alleges that the removal of the statue violated its First Amendment rights. This claim fails, however, because the Columbus statue is government speech and, as such, AIW has no cognizable free speech interest in it. Indeed, the Supreme Court has directly foreclosed such a claim. In Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009), the Court “held that the messages of permanent monuments in a public park constituted government speech, even when the monuments were privately funded and donated.” See Shurtleff v. City of Boston, Mass., 142 S. Ct. 1583, 1590 (2022) (summarizing Summum). Where a city is “communicat[ing] governmental messages”, as is the case here, it is “free to choose the [monument it displays] without the constraints of the First Amendment’s Free Speech Clause.”

That should be the end of this nonsense. The AIW is free to serve up an amended complaint, but it’s impossible to see how the group could come up with an actionable claim. The statue was the government’s to keep or remove. And it chose to remove it. Being angry isn’t the same as cognizable legal claim, something far too many plaintiffs fail to understand.

Filed Under: 1st amendment, christopher columbus, new haven, statues, wooster square

Congress And The SEC Are Getting Basically Everything Wrong In Trying To Respond To ‘Meme Stocks’

Wall Street

from the the-man-can't-meme dept

As you’ll recall, a year and a half ago, much of the world who didn’t live on the WallStreetBets forum were introduced to the concept of meme stocks. As we discussed at the time, much of the embrace of such stocks by retail investors was really about people who were fed up with feeling like the entire financial system was rigged against them, and in favor of those already rich and powerful. The underlying concept that drove much of the meme stock effort was about every day investors trying to assert some pushback on the underlying system.

That’s not to say that the meme stocks worked out well for everyone. Plenty of people did lose money, because that’s part of the nature of investing. There’s an underlying myth that the entirety of meme stock investing was about ignorant investors doing silly things, but doing so en masse to effectively counter for their own ignorance. And, surely, there were some retail investors who just went along for the ride, for the lolz, or whatever. But especially with the original meme stock, GameStop, the core of that deal was a retail investor who had done a ton of research, had a real game plan, and a real argument for why the stock was undervalued.

Ever since then, however, there’s been scrambling by “the system” to deal with “the problem” of meme stocks. And, yes, there are a lot of questionable underlying assumptions that meme stocks are, indeed, a problem. A few weeks ago, the SEC launched its very, very weird response to the whole meme stock thing by trying to create a meme of its own, with a very, very cringeworthy video called Investomania.

So… a few comments on this. First off, encouraging anyone who is looking to invest to do some research is a reasonable enough message on its own, but this is the exact wrong way to deliver this message. The people who are into meme stocks quite reasonably mocked the SEC mercilessly for this nonsense.

And, yes, I’m sure you can piece together the sad logic by SEC folks that resulted in them taking this approach: these are meme stocks, so the people who are interested in them like memes, so let’s create a meme! That’ll do it!

But, again, that totally misunderstands what’s going on here. The general focus of the meme stock world is sticking it to the system that is rigged against them. The SEC is the system. The SEC is the Man. Having the system you’re trying to stick it to, then turn around and suggest that everyone investing in meme stocks is an idiot who doesn’t do research not only gets the message wrong, it targets the message in exactly the wrong way.

The Man can’t meme about why those trying to stick it to the man shouldn’t fall for meme stocks.

Yes, people investing in stocks should do research, and you’re very likely to lose a lot of money just chasing after dumb ideas, but this video is not actually targeting the people who just go along for the ride, but rather the people who are doing their research and are trying to make a difference against the underlying rigged system — while the SEC seems to be pretending that the system is fine, it’s just you stupid retail investors who are the problem.

And… now it’s getting worse, because Congress is getting involved.

The U.S. House Committee on Financial Services on Friday called for the SEC, along with other regulators, to do more to protect the markets from similar events.

The impetus for change came from the so-called “Reddit rally” of January 2021, in which GameStop Corp and other “meme stocks” popular on social media surged to extreme highs on buying from investors trading heavily through Robinhood and other commission-free retail brokerages.

The intense volatility led to big losses for hedge funds that had bet against the meme stocks.

Notice the language here. “Protect the markets.” Because it was “the markets” that suffered? No, as later noted, it was some hedge funds that had bet against these stocks that lost. They don’t need to be protected.

All this kind of thing does is make people even more sure the system itself is rigged against the everday retail investor.

Now, there are reasonable concerns that the SEC has about “payment for order flow” and how that creates potentially questionable incentives for firms like Robinhood, which really pioneered the zero commission trade setup after realizing that they could just sell their deal flow through Citadel, allowing that firm to pre-run the market. The main issue there is that companies like Robinhood get paid more for a larger order flow, which gives them incentive to, in turn, encourage retail investors to trade more.

But, it’s reasonable to be skeptical about whether the SEC’s and Congress’ actual concerns are about systems that may encourage retail investors to trade too much… or if it’s really about “protecting the market” in the form of protecting the hedge funds that lost a bunch of money.

Filed Under: congress, meme stocks, payment for order flow, sec

Because Vulnerable People Need Section 230, The Copia Institute Filed This Amicus Brief At The Eleventh Circuit

Free Speech

from the self-defeating-litigation dept

It is utterly and completely irrational for people who defend the vulnerable to call for the destruction of Section 230. Section 230 helps protect vulnerable people by making it possible to speak out against those who would hurt them. Weakening the critically important protection it provides online platforms would only weaken these platforms’ ability to provide an outlet for vulnerable people’s critically important expression, and thus in turn weaken them.

Which is why we filed an amicus brief in the case of M.H. v. Omegle. As with most of these cases challenging the application of Section 230, something terrible happened to someone online. In this case, it was the sexual abuse of a minor. But this litigation is not about holding the abuser responsible but instead the online platform that was used – and by plenty of people not abusing each other, of course.
The district court correctly found that Section 230 barred these claims. After all, the abuse in question was content created by a user, not the platform. And Section 230 exists to make sure that only the users who create wrongful content are held responsible for it and not the platforms that were used because there is simply no way for platforms to have to answer for the almost infinite amount of content that its users make that could be wrongful in an almost infinite numbers of ways. If they had to answer for any of it, they would likely have to refuse all of it (or at least plenty of perfectly legal and beneficial, or even necessary, expression).

But the plaintiffs didn’t like the district court’s answer and so they appealed to the Eleventh Circuit. The Copia Institute then filed its amicus brief to explain to the court what is at stake if it reversed the decision to find that Section 230 didn’t bar these claims in order to try to help this very sympathetic plaintiff. The upshot: much more trouble for future sympathetic plaintiffs, who will lose their ability to speak online safely, if not entirely, as platforms go out of business, refuse more user expression, or stop moderating any of it, which would leave their communities cesspools of even more abuse. And we know this dire prediction is true because we’ve already seen it happen where Section 230 has been weakened before or otherwise unavailable. As we’ve seen play out in the wake of FOSTA in particular, Section 230 does critically important work staving off this sort of dire future where vulnerable people lose all ability to safely use online systems to strengthen their position or even just call for help.

Again, it is a very odd thing for advocates of the vulnerable to call for more of. And so we hope the court will take heed. Not only would allowing these claims to go forward violate the policy balance Congress carefully struck when it passed Section 230, and for good reasons that still remain as valid today as they did back then, but it would outright hurt the very same people these advocates would claim to help. To protect the vulnerable, we need to protect Section 230.

Filed Under: 11th circuit, section 230
Companies: omegle

Daily Deal: The Two Million Dollar Puzzle

Deals

from the good-deals-on-cool-stuff dept

Are you a fan of solving puzzles? Do you like winning money? Then MSCHF has a treat for you. MSCHF, the makers of THE ONE MILLION DOLLAR PUZZLE, now brings you THE TWO MILLION DOLLAR PUZZLE. All you have to do is buy this 500-piece jigsaw puzzle, complete it, and get a chance to win anything from $1 to $1,000,000! And everyone is a winner, there are no losers. This time around two puzzles will have the $1,000,000 code in them. You can get one puzzle for $30, 2 for $56, or 4 for $100.

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

Filed Under: daily deal

Kentucky Supreme Court Says Warrants Are Needed For Real-Time Cell Location Pings

Privacy

from the get-a-warrant dept

In 2018, the Supreme Court declared warrantless access to historical cell site location information unconstitutional, given the privacy implications of being able to track someone’s movements over days or weeks without bothering to secure a warrant. Prior to this decision, cell site location info (CSLI) was treated as a third party record, requiring neither a warrant nor probable cause to obtain.

It did not extend this coverage to real-time access to CSLI, tower dumps, or ping requests made to service providers to engage in quasi-real time tracking. However, other courts in the nation have been willing to extend the coverage of the Carpenter decision, applying it to other third party records, including real-time acquisition of cell location info.

One of the courts to do so was the Kentucky state appeals court. In a case dealing with the apprehension of a robbery suspect, the court suppressed real-time location info law enforcement obtained without a warrant from a cell service provider — information that proved instrumental in officers’ location and arrest of the suspect.

This decision said this information was no longer covered by the Third Party Doctrine, but by the Fourth Amendment.

Thus, because pinging a cell phone enables the police almost instantaneously to track individuals far beyond the public thoroughfare into areas where they would have a reasonable, legitimate expectation of privacy, we conclude that a warrant is required to acquire real-time CSLI.

The government appealed the 2020 appellate decision, hoping the state’s top court would reverse the lower court’s decision. This bet has failed to pay off. The Kentucky Supreme Court has affirmed the lower court’s decision, declaring that access to real-time cell site location info requires the use of a warrant. The decision [PDF] also affirms the denial of good faith to the officers who obtained this info. (via FourthAmendment.com)

Like the Court of Appeals, we find that the police acquisition of Reed’s real-time CSLI was a warrantless, unreasonable search, and we find that the good-faith exception to the exclusionary rule does not apply in this case. Accordingly, we affirm the decision of the Court of Appeals to reverse the trial court’s judgment and remand this case to the trial court for further proceedings.

Like the appeals court, the Supreme Court says good faith doesn’t apply because “the officers were not acting in reliance of binding precedent.” Unlike far too many other courts, Kentucky’s top court refuses to grant good faith simply because no precedent exists. It holds cops in the state to a higher standard: a need for affirmative judicial precedent that supports their action, rather than simply allowing cops to abuse legal gray areas until contravening precedent is generated.

Key to the court’s findings here is how this information is obtained. Rather than being a third party record created by someone simply having their phone on while near cell towers, the location data obtained here required the interference of the cell service provider.

Real-time CSLI is not a passive location record but data generated by an affirmative action—a “ping” taken by the cell-service provider at the behest of a law enforcement officer. By “pinging” an individual’s cell phone, the cell service provider is able to determine, instantaneously, the cell phone’s location in relation to the available cell sites and to communicate that location information to law enforcement.

And that’s where the search moves from “reasonable” to “unreasonable,” says the court.

In obtaining an individual’s cell phone’s real-time CSLI, police commandeer the cell phone and its transmissions for the purpose of locating that individual. We find this usurpation of an individual’s private property profoundly invasive, and we liken it to a technological trespass. Such an appropriation of an individual’s cell phone is precisely the sort of invasion that we find the average citizen unwilling to accept.

Historic CSLI is intrusive because it allows law enforcement to track someone’s movements after the fact, providing officers with plenty of information about a person’s life, habits, contacts, and other activities. Prospective (“real-time”) CSLI is intrusive because it forces someone’s phone to, in essence, “answer” to law enforcement by providing its current location.

The government tried to argue that real-time pings were no different than observing a driver on a public road… apparently because law enforcement performed the stop on a public road. The court finds this argument ridiculous.

We do not disagree that an individual has no reasonable expectation of privacy in his movements on a public road and, thus, law enforcement may constitutionally observe those movements. But at issue in this case is not the observation of Reed’s movements on a roadway or the traffic stop performed on Reed’s vehicle but the acquisition of Reed’s CSLI that enabled officers to conduct a dragnet to intercept Reed’s vehicle. At the time police pinged Reed’s cell phone, Reed was not under visual police surveillance. Instead, the only reason police were able to locate and surveil Reed on a roadway was as a result of their acquisition of Reed’s CSLI. It is the constitutionality of the acquisition of Reed’s CSLI, not of his traffic stop, that we consider today. As such, we regard Knotts as inapplicable in this case. We find that a person’s reasonable expectation of privacy in his CSLI is unaffected by his or his cell phone’s physical location at the time the CSLI is generated or acquired by police.

Furthermore, the court says, giving the government’s other argument (that the third party doctrine is engaged just because a cell user has granted permission for third parties to gather data) credence would allow widespread abuse of third parties to bypass the Fourth Amendment.

Permitting application of the third-party doctrine to real-time CSLI would drastically alter the landscape of digital privacy. By the same logic offered by the Commonwealth, law enforcement could contact application developers whose applications are authorized to use the camera and microphone on a cell phone. Law enforcement could then, via those application developers, commandeer the cell phone as a photo, video, and audio surveillance device, simply because the cell phone’s owner granted authorization to those applications.

The government loses its evidence (again) and the case returns to the trial court where prosecutors can try to put the suspect behind bars, but without the benefit of the CSLI info or evidence derived from the traffic stop that followed the warrantless pings. And, again, the Kentucky court system holds officers in the state to a higher “good faith” standard — one that says cops don’t get to play fast and loose with unsettled law unless they like seeing their evidence tossed. More courts should do the same.

Filed Under: 4th amendment, csli, kentucky, location information, real time cell location, third party doctrine, tower dumps, warrants

‘Big Telecom’ Still Wants ‘Big Tech’ To Give Them Billions Of Dollars For No Coherent Reason

Broadband

from the troll-toll dept

For literally twenty-five years now, telecom monopoly executives the world over have been trying to force big tech companies billions of dollars for no coherent reason. It began with AT&T’s attempt to double dip on Google; which spurred the entire net neutrality war. The complaint by telecoms has long since moved global, as they try to get gullible politicians to try and force tech giants to give them billions.

The (false) argument always involves some variation of the claim that tech giants are getting a “free ride” on the internet or somehow not “paying their share,” despite the fact that companies like Google pay billions of dollars not only for their own bandwidth, but increasingly own all manner of core internet and telecom infrastructure, from fiber transit lines to undersea fiber runs (Google even runs a residential ISP).

The argument by telecom lobbyists (and the regulators and politicians paid to love them) is ever present in the U.S., but has heated up in Europe the last few months, as the EU debates the digital policy trajectory that will shape tech policy across the EU for the next decade.

The gambit, as it did in the EU again last week, always involves a telecom lobbyist getting some politician or regulator to push the idea as if it’s just a good faith gambit to conquer that pesky “digital divide”:

The EU executive’s chief officials on digital policy, Commission Executive Vice President Margrethe Vestager and Commissioner Thierry Breton hinted at the plans in recent weeks. In an interview last month, Breton told Les Echos newspaper that telecoms operators weren’t getting “the right return on investment” from maintaining the networks, and it was time “to reorganise the fair remuneration of the networks.”

It doesn’t take much for a telecom giant lobbyist to get entire teams of politicians cheering in favor of giving their employer billions of dollars… just because:

In a letter sent to Vestager and Breton last week and obtained by POLITICO, five leading members of the European Parliament from center-left to right groups called on the Commission to step up their efforts to remove hurdles that prevent the telecoms industry from investing in infrastructure and to incentivize “the roll-out of high-speed electronic communications networks” in Europe.

This is the exact same argument being recently made by FCC Commissioner Brendan Carr here in the States. Carr has rubber stamped every big telecom policy since being seated, including the wholesale demolition of broadband consumer protections. He’s incapable of admitting the U.S. broadband sector even has a competition problem, yet is first in line cheering to subsidize industry giants further.

These arguments always (intentionally) ignore some things; namely that telecoms receive untold billions in taxpayer subsidies, tax breaks, and regulatory favors for networks that always, quite mysteriously, wind up half completed. If a policymaker is serious about shoring up access, cracking down on waste and fraud in telecom oversight would be the very first place to start. The omission is usually fairly telling.

When it comes to telecom monopolies the world over, nobody gets a free ride. Everybody pays, and pays, and pays some more. And when said telecoms control the policymaking apparatus (which is the case in most countries), politicians, who should be working for the public interest, but are, instead, in the telecoms’ pockets, are usually easy to spot by their tendency to want to throw billions more at the problem without functional reform.

Filed Under: broadband, digital divide, eu, free ride, high speed internet, subsidies, telecom

Yet Another EU Data Protection Authority Says Google Analytics Violates The Law

Privacy

from the this-is-why-we-can't-have-nice-things dept

It’s kind of weird that in some convoluted way, the NSA may be killing Google Analytics, at least in the EU. You may recall that back in 2020, Max Schrems won his second big data privacy effort against the EU/US Privacy Shield agreement, which allowed data from people in the EU to be transferred to US companies under certain conditions. The “Privacy Shield” was a concept the EU and US cooked up after their earlier setup, the EU/US “safe harbor” framework was tossed out in an earlier case brought by Schrems. In both cases, a key underlying issue was the NSA’s ability to conduct mass surveillance on the internet. The failure to fix that between the safe harbor framework and the Privacy Shield meant that the Privacy Shield was doomed from the start.

Earlier this year, the US and EU announced a new version of the Privacy Shield though details were still lacking. Assuming the NSA isn’t giving up its powers to surveil much of the internet, it doesn’t seem likely to survive Schrems’ next attempt.

In the meantime, though, it’s causing all sorts of issues. And many of those issues are basically: Google Analytics. Most recently, Italy’s data protection authority, said that using Google Analytics violates the GDPR by sending data overseas, something that can’t be done without a new Privacy Shield (or equivalent) agreement between the US and the EU.

As TechCrunch points out, this decision is just the latest in an increasingly long line of similar rulings:

Earlier this month, France’s data protection regulator issued updated guidance warning over illegal use of Google Analytics — following a similar finding of fault with a local website’s use of the software in February.

[…]

Austria’s DPA also upheld a similar complaint over a site’s use of Google Analytics in January.

While the European Parliament found itself in hot water over the same core issue at the start of the year.

Leaving aside the ongoing irony of the EU Parliament’s own website violating the GDPR, at the heart of all this remains: the NSA basically has screwed up Google Analytics for the EU.

Now, there are all sorts of reasons to dislike Google Analytics — we ditched it ourselves — but it’s important to remember that at the core of this, is the NSA basically making things impossible for a number of American internet companies. This is one of many reasons (and certainly lower in importance than just basic civil rights and liberties) why it’s still amazing that we’ve more or less allowed the NSA to continue its surveillance efforts with only minor modifications in the decade or so since Ed Snowden leaked the details.

Filed Under: data sharing, eu, gdpr, google analytics, italy, nsa, privacy shield, safe harbor, surveillance
Companies: google