The FBI's impersonation of journalists raised questions about its investigative activities, none of which the FBI felt like addressing. An Inspector General's investigation of FBI investigations using this tactic found that it was generally a bad idea, but not an illegal or unconstitutional one. Prior to the investigation, the FBI apparently had no clear policies governing this form of impersonation, which it used to snare a school-bombing suspect.

Following the report, a policy was put in place that added some additional layers of oversight but didn't indicate the obvious downside of impersonating journalists: that the people the FBI wants to investigate are going to do a lot less talking to anyone they don't know, which includes journalists attempting to document newsworthy events that might contain criminal activity.

The FBI blew it with one of its other impersonation efforts. As Camille Fassett reports for the Freedom of the Press Foundation, a more recent effort may have put a serious damper on its fake news(person) efforts.

In an even more disturbing incident in 2015, FBI posed as a documentary filmmaker crew in order to gain the trust of a group of ranchers engaged in an armed standoff with the government. The fake crew recorded hundreds of hours of video and audio and spent months with the ranchers pretending to make a documentary.

The FBI tacitly acknowledged these efforts are great for the short-term, but ultimately harmful to the FBI in the long-term. Notably, it's not because they have a chilling effect on press freedoms, but rather because they undermine trust in the entities the FBI wants to impersonate.

The FBI’s own arguments in the case acknowledge the chilling effect on journalism presented by this tactic. In a motion of summary judgment obtained by Freedom of the Press Foundation, the agency argued that it should not be required to disclose details about other instances of media impersonation, on the grounds that “it would allow criminals to judge whether they should completely avoid any contacts with documentary film crews, rendering the investigative technique ineffective.”

The Reporters Committee for Freedom of the Press has obtained the FBI's guidelines [PDF] for undercover efforts that involve impersonating journalists. They indicate there are several levels of approval needed, but don't contain details about what's considered by those making these determinations.

The relevant FBI field office must submit an application to the Undercover Review Committee at FBI headquarters and it must be approved by the FBI Deputy Director after consultation with the Deputy Attorney General. The guidelines do not provide any criteria the FBI Deputy Director and/or the Deputy Attorney General must consider when approving these undercover activities.

All well and good, but one wonders how high the potential impact on civil liberties rates on the scale of 0-Impersonation, or whether it's more important the agency doesn't undermine future investigations by setting fire to the reputation of the impersonated entities by opening the Adventurous Reporter dress-up kit once too often.

I don't believe the FBI doesn't care at all about the collateral damage. I'm just reasonably certain it's far more concerned about how often -- and how successfully -- it will be sued. Adding more layers of oversight won't necessarily steer agents away from questionable tactics, but it will make it more difficult for plaintiffs to show the FBI carelessly caused damage to their livelihoods by pretending to be the press.

Yesterday we published the first part of an analysis by copyright lawyer Rick Sanders who wrote up a thorough analysis of the recent 9th Circuit decision to overturn the jury verdict in a case involving whether or not the Led Zeppelin song "Stairway to Heaven" infringed on another song. The first part described how the 9th Circuit might correct a problematic "test" for infringement, and this part analyzes the problems with the jury instructions.

Last time, I explained why I thought the Ninth Circuit's recent vacating and remanding of the jury verdict in Led Zeppelin's favor was, long-term, a good thing for copyright law (even if I kind of liked the verdict and am genuinely sorry for Led Zeppelin). The reason is that the reversal gave one panel of the Ninth Circuit an opportunity to try to fix the Ninth Circuit's unhelpful legal framework for determining copyright infringement.

But that isn't why the panel reversed. While the panel did make some suggestions about how to present the "inverse-ratio" rule to the jury, the way it was presented to the original jury isn't what merited reversal. What merited reversal was the lack of another jury instruction about a basic and uncontroversial principle of copyright law that the parties agreed should have been there in some form. In short, the case is being reversed — and the Ninth Circuit is getting a chance to fix its own weird copyright law — because of what appears to have been a brain fart.

Jury Instructions: An Introduction

We all gasped when we heard about the reversal. Jury verdicts are hardly ever reversed. One of the few ways a jury verdict can be thrown out is if the jury was badly instructed in the law. Juries, naturally, don't bring any knowledge about the law with them when they serve. That's not their job, really. Their job is to weigh evidence, make credibility determinations, and so forth. But at some point, they need to be told what the law is, so they can take all that evidence they weighed and apply it to the law and render a verdict. How this is accomplished might surprise you.

There are several ways for jury instructions to be prepared and delivered to a jury, but the main way is this. First, the parties' attorneys confer about what jury instructions they can agree on and jointly submit those instructions to the court. In this, they are aided by pattern jury instructions prepared at the circuit court's direction. But pattern jury instructions don't cover every aspect of every area of the law. You'd need ever-updating volumes to do that. Also, the pattern jury instructions aren't unassailable: a party might disagree with one and explain how it should be and why.

For all other jury instructions, the parties submit their own versions of instructions they think address all of the legal issues being raised at trial, together with a short explanation of the legal authorities for their versions. The judge decides which version to use, or the judge might even craft his or her own version based on their own research.

Are the instructions then typed up, collated and distributed to the jurors in a neat binder? No! The judge reads them to the jurors, at the very end of the case, during what is called the "jury charge." The jurors have to memorize the instructions (though they can ask to re-hear specific ones later during their deliberations).

"Selection and Arrangement": An Introduction

In this case, the parties agreed that they needed an instruction about what to do with a work that is made up of unprotectable elements. Just because your work is made up of lots of unprotectable elements, that doesn't mean your work as a whole can't be protected by copyright. If you put those unprotectable elements together in an original way, then the way you put those elements together is protectable, though not the individual elements themselves. After all, you can theoretically dissect any creative work down into non-protectable elements: individual notes, individual words and phrases, individual brushstrokes, etc. It's what you do with those non-protectable elements that counts. Courts call this "selection and arrangement," which makes it seem more abstract than it is.

In this case, the plaintiffs hold the copyright in the song "Taurus," which has for years been rumored as the inspiration for Led Zeppelin's "Stairway to Heaven." (But inspiration isn't infringement! Well, at least, not necessarily.) When the plaintiffs finally got around to suing, Led Zeppelin argued (among other things) that any similarities between the songs were only for non-protectable elements, like the use of the chromatic scale. Plaintiffs argued that, even if that were true, the "selection and arrangement" of those elements were original (and, by implication, that "Stairway to Heaven" took that selection and arrangement).

Both parties recognized the need for an instruction on this issue. They disagreed on what it should say. They submitted competing instructions for the judge to consider. Then came the jury charge, at the very end of the case, just before the jury began deliberations. The judge began to read the instructions. Now, normally, a party would have an opportunity to object on the record to an instruction. This is a prerequisite to complaining about it on appeal. But the judge here didn't want to hear any objections. He reasoned that, if the parties disagreed about an instruction in their submissions, it was reasonable to assume that they would object to an instruction that didn't match what they'd submitted.

The parties waited for the instruction about what to do with works made up of unprotectable elements. It never came. This was good for Led Zeppelin, though not ideal. On the one hand, since Led Zeppelin had presented evidence that all they'd taken (if anything) from "Taurus" was not protectable, such an instruction couldn't help their argument, no matter how it was crafted. On the other hand, it was foreseeable at the time that the missing jury instruction could imperil a jury verdict in Led Zeppelin's favor (assuming they could focus on it with 500 other things going on at that moment.

On appeal, the strongest argument — that trial court was correct not to give the instruction — wasn't really available to Led Zeppelin because even it had suggested an instruction. (Led Zeppelin tried anyway.) Instead, it had to argue that the missing instruction made no difference to the jury's deliberations. That's where another major goof with the jury instructions came in.

Copyright's Broad Scope

Nearly all copyright cases will need an instruction about originality. Without "originality," there is no copyright. Originality, however, is pretty easy to achieve. All that's really required is that the work be expressive (i.e., not just ideas) and the product of a human mind. This last requirement not only excludes things like the "monkey selfie," but also things like underlying facts, which exist independent of human thought; and stock "tools of the trade" commonly available to everyone in the creative field, like stock characters, computer code that everyone uses, certain three chord progressions, and so forth (what lawyers call "scènes à faire"). It also excludes material the author copied from other works (including those in the public domain), but only if the author actually copied them. Originality doesn't mean novelty, just that it's the author's independent expression.

Originality is so basic to copyright law that there's actually one of those "pattern jury instructions" about it. Pattern jury instructions aren't law and aren't always appropriate in every instance, but departure from them demands explanation. The court took the model instruction and added the stuff in bold and took out the stuff that's been struck through:

An original work may include or incorporate elements taken from works owned by others, with the owner's permission. However, any elements from prior works or the public domain are not considered original parts and not protected by copyright. Instead, [t]he original parts of the plaintiff's work are the parts created:

1. independently by the work's author, that is, the author did not copy it from another work; and
2. by use of at least some minimal creativity.

In copyright law, the "original" part of a work need not be new or novel.

You might detect a pattern here (as it were). The instruction about how to treat works consisting of non-protectable elements was left out. Now the instruction about originality includes a new sentence that emphasizes how non-protectable elements aren't protectable, without telling the jury that those non-protectable elements can be selected and arranged in a protectable way.

What it Means to Create

I don't know if copyright has a single "heart." Perhaps, like an octopus, it has several hearts. But surely one of copyright law's hearts is that creativity can and often does build on the work of others. This idea is echoed in fair use. And it is echoed in the non-controversial idea that not every element of a work must be protectable for the work to be entitled to copyright protection. "Selection and arrangement" is just a stilted and abstract way of saying: if you give 100 kids the same collection of 100 lego bricks, you will have 100 different original works in about 30 minutes, even though no single lego brick is protectable and even though the 100 different original works will naturally share certain techniques in common.

These two errors in the jury instructions aren't just about technicalities of a highly technical law. Goodness knows there's a lot of those in copyright law. No, they go to one of the basic tenets of copyright law: what it means to create.

My charitable interpretation of all this is that the court had a major brain fart that Led Zeppelin's lawyers didn't see coming or didn't fully understand how perilous the consequences would be. The other interpretation is that this was a legal strategy that worked too well and backfired badly. It's too bad. I strongly suspect that a correctly instructed jury would have come to the same verdict, but the scale of this mistake is such that we can't safely assume that. I also strongly suspect Led Zeppelin will prevail on remand—after incurring more expense, lost time and anxiety.

Rick Sanders is a trademark, trade secrets and copyright litigator and a founding partner of Aaron & Sanders, PLLC. From 2012 to 2014, he was an adjunct professor at Vanderbilt University Law School, where he was teaching Copyright Law. He blogs at IPBreakdown and tweets at @RickSandersLaw.

Every few months, it seems, President Trump trots out some nonsense about how our current defamation laws are unfair and he promises to open them up. It keeps happening. And it's not surprising because Trump himself has threatened defamation lawsuits many times, and even occasionally filed an actual defamation lawsuit, such as the one against Tim O'Brien, which Trump lost completely -- though, tellingly he later admitted that he felt like he succeeded in forcing O'Brien to spend money in court:

"I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.'"

Of course it's this kind of thinking that is the reason why we support stronger anti-SLAPP laws and, in particular, a federal anti-SLAPP law to protect people from having to deal with potentially life-ruining defamation lawsuits from those better positioned to handle them. Of course, this is also why we figure that any movement on a federal anti-SLAPP law is dead in the water while Trump is still President. Given his comments on moving libel laws in the other direction, it seems unlikely he'd ever sign such a bill.

But... Trump just won a defamation lawsuit filed by Stormy Daniels, and it was because of a strong anti-SLAPP law in Texas, that might now allow him to go after legal fees as well. Of course, there have been moments when Trump has recognized that "opening up our libel laws" might come back to bite him. As he said in a NY Times interview, when asked about opening up libel laws:

Actually, somebody said to me on that, they said, ‘You know, it’s a great idea, softening up those laws, but you may get sued a lot more.’ I said, ‘You know, you’re right, I never thought about that.’ I said, ‘You know, I have to start thinking about that.’

And now that Trump has successfully used an anti-SLAPP law to get out of a lawsuit, perhaps he'll be a bit more open to the idea of anti-SLAPP laws as well.

This particular lawsuit, brought by Stormy Daniels, represented by Michael Avenatti, was always an incredibly stupid lawsuit that Trump was obviously going to win. There are a bunch of legal disputes and arguments among these two, but just to clarify, back when Daniels was on 60 Minutes, she claimed that she had agreed to tell her story of her affair with Trump back in 2011, but was allegedly threatened in a Las Vegas parking lot:

Then in 2011, after she had agreed to tell her story to In Touch magazine for $15,000, Daniels said she was threatened by a man in a Las Vegas parking lot who warned her to "Leave Trump alone. Forget the story."

Sometime after this, Stormy Daniels had a sketch artist sketch the man she said approached her in Las Vegas. Some Trump supporters noted what they believed to be an uncanny similarity between the eventual sketch and Daniels' ex-husband, and tweeted this. Trump then retweeted one such tweet along with the following text: "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!"

And it's that tweet that Daniels/Avenatti sued over. Again, this was clearly going nowhere. That tweet is not at all defamatory under the 1st Amendment. In his defense, Trump, who was represented by Charles Harder*, filed an anti-SLAPP motion, arguing that Trump was protected under Texas' anti-SLAPP law, that the case should be dismissed, and that Trump should be awarded attorneys' fees. And the court easily agreed.

* Big disclaimer here: Harder is at this moment representing a plaintiff in a still ongoing lawsuit against me personally (as well as Techdirt), claiming defamation, and in which we made a motion using California's anti-SLAPP law. In the Trump case, however, it is Harder/Trump making use of anti-SLAPP laws (in this case, Texas') and I agree with Harder and Trump that this claim was a SLAPP suit and am glad the case was dismissed.

In their motion for the anti-SLAPP dismissal, Harder argued that Trump's tweet was clearly protected by the First Amendment, and thus the anti-SLAPP law should lead to the dismissal of the case. Frankly, I think Harder makes a very strong argument here:

Here, the Comment nowhere implies that President Trump has any special information or insight as to what did or did not happen in a Las Vegas parking lot in 2011. Rather, he gives an opinion that he does not find Plaintiff’s account credible. This is constitutionally-protected and therefore nonactionable, especially because the Comment arose from a public dispute between a major politician and one of his adversaries.

It does not matter that the President used strident language (“nonexistent,” “con job,” and “fake news”) in expressing his opinion doubting the veracity of Plaintiff’s allegation rather than using more genteel terminology. Rhetorical hyperbole is not actionable as defamation. Neely v. Wilson, 418 S.W.3d 52, 83-84 (Tex. 2013). Courts throughout the United States have routinely held that terminology similar to that used by the President is constitutionally protected opinion and non-actionable. See e.g., McCabe v. Rattiner, 814 F.2d 839, 843 (1st Cir. 1987) (“scam” not defamatory); Oilman v. Evans, 750 F.2d 970, 987 (D.C. Cir. 1984) (en banc) (political columnist labeling a political figure a “Marxist” not defamatory); Letter Carriers v. Austin, 418 U.S. 264, 282-83 (1974) (use of term “scab” in labor dispute not defamatory); Buckley v. Littell, 539 F.2d 882, 893-94 (2d Cir. 1976) (labeling political writer a “fascist” not defamatory); Greene v. State, 21 So.3d 348, 352 (La. App. 2009) (labeling state employee “pathological liar” not actionable).

Any finding by the Court that the Comment has a defamatory meaning and is not protected opinion could have a chilling effect on political debate throughout the United States forever. Politicians frequently express their opinions about their political adversaries, often in strident and blunt terms. In 1964, for instance, Lyndon Johnson ran an advertisement that implied his opponent, Barry Goldwater, would start a nuclear war. John Kennedy campaigned against incumbent Vice President Richard Nixon in 1960 based on claims of a “missile gap” with the Soviet Union that turned out to be grossly misleading. Bill Clinton allegedly misstated the budget deficit in his 1992 campaign against George H.W. Bush. None of these statements were anything more than opinions, and none could or should form the basis of a defamation suit.

Indeed, since the founding of our republic, politicians have often expressed their opinions by branding their opponents as “liars.” Doing so does not subject every such politician to a defamation claim. President Trump himself has expressed his opinions regarding multiple adversaries, sometimes referring to his opponents by colorful names such as “Lyin’ Ted” and “Crooked Hillary.” A defamation standard that turns typical political rhetoric into actionable defamation would chill expression that is central to the First Amendment and political speech.

It's a strong argument. And the judge easily agreed, noting that the tweet was clearly rhetorical hyperbole:

The Court agrees with Mr. Trump's argument because the tweet in question constitutes "rhetorical hyperbole" normally associated with politics and public discourse in the United States. The First Amendment protects this type of rhetorical statement.

"It is well settled that 'the meaning of a publication, and thus whether it is false and defamatory, depends on a reasonable person's perception of the entirety of a publication and not merely on individual statements." See Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002) (quoting Turner v. KTROK Television, Inc., 38 S.W. 3d 103, 115 (Tex. 2000)). To assess whether a statement is "rhetorical hyperbole," this Court looks to the statement "as a whole in light of the surrounding circumstances and based upon how a person of ordinary intelligence would perceive it."

Furthermore:

The instant case is similar to Rehak in that Mr. Trump, as President, made a hyperbolic statement against a person who has sought to publicly present herself as a political adversary to him. In filings before this Court, Ms. Clifford has challenged the legitimacy of Mr. Trump's victory in the 2016 Presidential election. Mr. Trump's tweet served as a public rejoinder to allegations made by Plaintiff. If this Court were to prevent Mr. Trump from engaging in this type of "rhetorical hyperbole" against a political adversary, it would significantly hamper the office of the President. Any strongly-worded response by a president to another politician or public figure could constitute an action for defamation. This would deprive this country of the "discourse" common to the political process. In short, should Plaintiff publicly voice her opinions about Mr. Trump, Mr. Trump is entitled to publicly voice non-actionable opinions about Plaintiff. To allow Plaintiff to proceed with her defamation action would, in effect, permit Plaintiff to make public allegations against the President without giving him the opportunity to respond. Such a holding would violate the First Amendment.

And thus, in the end, Trump wins his anti-SLAPP ruling and can now move to seek legal fees if he so chooses. Of course, Avenatti -- in a now deleted tweet -- called the ruling "limited":

It is not, in any way, limited. It is the proper application of Texas' anti-SLAPP law to a bogus defamation claim which Avenatti himself admits is part of an effort to cost Trump more money through the other lawsuits Avenatti has going against Trump. Soon afterwards Avenatti posted that he had already appealed the ruling to the 9th Circuit appeals court:

He and Daniels will almost certainly lose this appeal and Trump will almost certainly win. But the real question is whether or not this helps Trump recognize the value of strong anti-SLAPP laws. It seems like now would be a good time for Congress to finally move on the federal anti-SLAPP law, while reminding Trump that it may have just saved him a bunch of money...

Moderating at scale is a nightmare. Anything you do will be wrong. This doesn't mean you shouldn't try. This doesn't mean you shouldn't listen to criticism. Just be aware every move you make will cause unintended collateral damage. Making everyone happy is impossible. Making everyone angry is inevitable.

Mike Masnick's long, thoughtful post -- springing from multiple platforms' booting of Alex Jones -- pointed out two things that seem to get forgotten when discussing social media moderation:

1. Platforms can remove users with impunity without raising legal or ethical issues.

2. This shouldn't prevent us from expressing our concern about how these moderation issues are handled.

This is raising its head again because Facebook's efforts to eradicate fake news and untrustworthy news sources has removed several pages belonging to controversial news sources. For whatever reason, most of these sites are strongly associated with police accountability efforts. Radley Balko listed these sites on Twitter:

If you can't read/see the tweet, it says:

As part of its purge, Facebook has removed the pages of several police accountability/watchdog/critic groups, including Cop Block, the Free Thought Project, and Police the Police. They've also apparently severely restricted activity for the Photography Is Not a Crime page.

To critics of cop critics, this tweet seemed like hypocrisy. Several quoted an earlier tweet by Balko about platform moderation. That one said:

Private companies like FB and Google have every right to remove content they find objectionable. No one owes Alex Jones a platform.

This is where critics of Balko and others stopped reading. This was the supposed hypocrisy of the anti-Jones, anti-Trump, anti-cop, anti-whatever on full display. But that wasn't the end of the tweet. Here's the rest:

But when politicians demand removal with implied threats, I start to worry. Senators shouldn't be deciding what's offensive.

That's the real issue. When the government starts guiding moderation efforts of private companies, the First Amendment comes under fire. But it seems politicians on both sides would rather see speech they don't like disappear than uphold the Constitution. Case in point, Senator Mark Warner, who took to Twitter to applaud Facebook's purge.

If you can't read/see the tweet, it says:

Good step by Facebook. Now that Russia's playbook is out in the open, more bad actors are going to take advantage. Social media companies are going to have to continue being proactive in identifying and responding to bad actors using their platforms.

Maybe so, but the vanishing of a handful of cop accountability-focused pages isn't exactly what comes to mind when someone's talking about Russian interference. Encouraging platforms to engage in further moderation may seem innocuous, but the reality of the situation is there is constant pressure -- applied by people like Senator Warner -- for platforms to do more, more, more because some speech they don't care for can still be found on the internet.

The more politicians push for action, the more collateral damage they will cause. They may feel there's no Constitutional problem since they're not directly mandating moderation efforts. But they are harming free speech, if only indirectly at this point.

Certainly Facebook is free to nuke accounts it finds questionable, but each moderation move expands the definition of untrustworthy to encompass entities who present newsworthy items with biased reporting. Anyone using the platform is free to find more balanced reporting. Senators standing back and applauding bad moderation moves helps no one.

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Canada has been stumbling towards an EU-style "right to be forgotten" (RTBF) for quite some time now. There was a big case last year that not only said Google can be forced to remove links to certain information, but that it could be forced to do so globally (i.e., outside of just Canada). That was as a result of a specific lawsuit about specific information, but this year, a bigger exploration of the RTBF concept has been underway, as some have argued that Canada's PIPEDA (Personal Information Protection and Electronic Documents Act) meant that Google should be forced to "de-link" articles on certain people's name searches upon request (just like the EU's RTBF).

A report from the Canadian Privacy Commissioner earlier this year argued that PIPEDA already provided such a right and the Privacy Commissioner Daniel Therrien has been stumping for this ever since. Google has -- for obvious reasons -- been expressing its position that this is ridiculous, saying that PIPEDA does not apply to de-linking individuals' names from news articles, and further argued that requiring such a result would be unconstitutional.

While it's clear that the Privacy Commissioner disagrees with Google, it has now asked the Canadian federal courts to weigh in:

Google asserts that PIPEDA does not apply in this context and that, if it does apply and requires the articles to be de-indexed, it would be unconstitutional.

Following public consultations, the OPC took the view that PIPEDA provides for a right to de-indexing – which removes links from search results without deleting the content itself – on request in certain cases. This would generally refer to web pages that contain inaccurate, incomplete or outdated information.

However, there is some uncertainty in the interpretation of the law.

In the circumstances, the most prudent approach is to ask the Federal Court to clarify the law before the OPC investigates other complaints into issues over which the office may not have jurisdiction if the court were to disagree with the OPC’s interpretation of the legislation.

A Notice of Application, filed today in Federal Court, seeks a determination on the preliminary issue of whether PIPEDA applies to the operation of Google’s search engine. In particular, the reference asks whether Google’s search engine service collects, uses or discloses personal information in the course of commercial activities and is therefore subject to PIPEDA. It also asks whether Google is exempt from PIPEDA because its purposes are exclusively journalistic or literary.

The thing that still baffles me about this is that anyone could possibly consider news reporting to be subject to "data protection" laws. This is unfathomable if you believe in concepts like freedom of expression and freedom of the press. Data protection is supposed to be about things like databases of information on someone, not news articles about someone. Yet, the EU mucked this up years ago, and now it's spreading. From the way the Privacy Commissioner has framed the question, it seems like there's a decent chance the court will rule against Google's view on this, meaning that censorship of news articles on public individuals, and the blatant rewriting of history will be enabled across Canada.

And, even worse, because of the Canadian rulings saying that the RTBF rulings in Canada should be applied globally, Canada may soon be the place to go to literally try to delete history. What a shame.

A new study has once again confirmed that the vast, vast majority of the public opposed the FCC's ham-fisted repeal of net neutrality.

Like most government proceedings, the FCC's net neutrality killing order's public comment period was filled will all manner of comments (both in favor and against) generated by automatic letter-writing campaigns. Like most government proceedings in the post-truth era, the net neutrality repeal was also plagued by a lot of shady gamesmanship by companies trying to disguise the fact that the government was simply kissing the ass of giant, unpopular telecom monopolies. But what happens if you eliminated all of the letter-writing campaign and bogus bot-comments?

A new report from Stanford University (pdf) did just that. It eliminated all automated or form-generated comments and found just 800,000 Americans willing to take the time to put their own, original thoughts on the net neutrality repeal into words. And of those 800,000 real people, 99.7% of them opposed what the FCC did:

"The unique comments are overwhelmingly in support of retaining the protections of the 2015 Open Internet Order. A manual analysis of 1,000 of these comments showed that 99.7% of the comments opposed the repeal."

That's not to say that form-letters opposed to the repeal should be ignored; millions of angry Americans voiced their concerns via form letter campaigns operated by (actual) consumer groups like Public Knowledge, Free Press, and the EFF. Previous analysis has indicated that even among these form letters, the vast majority opposed Ajit Pai's assault on meaningful consumer protections. Even studies funded by ISP-backed lobbying organizations have come to this same conclusion, making the FCC's claims that everybody supported its attack on net neutrality even more patently absurd.

Meanwhile, like countless surveys before it, the Stanford report also once again notes that this opposition was largely bipartisan in nature, coming from heavily "red" and "blue" districts alike:

"Polls have consistently shown that net neutrality protections are popular across party lines. This is supported by the geographical breakdown of the comments. While the highest number of unique comments come from traditionally Democratic urban districts, the average number of comments in all districts was 1,489, with an average of 1,202 in Republican-held districts"

Again, that's in stark contrast to claims that people "don't understand what net neutrality is" or that this somehow isn't an important issue to voters. Most Americans have pretty direct, first-hand experience of what it's like to deal with an apathetic broadband monopoly, whether it's AT&T, Verizon, Comcast, or Charter. As such, disgust at these companies is one of the very few things that bridges the country's deep, partisan divides. And most realize then letting Comcast abuse a broken, uncompetitive market doesn't end well for consumers or competitors alike.

Past analysis has suggested about half of the 22 million comments submitted to the FCC were likely fake, and somebody utilized a bot and hacked databases to flood the FCC with fake support for the FCC's plan. The GAO, New York State AG, and numerous lawsuits are still busy trying to get to the bottom of the obvious effort to try and drown out legitimate opposition with no real help from the FCC, which was eager to ignore the entire mess for what should be obvious reasons.

In a move that's tone deaf if nothing else, the DOJ is going to court to block a consent decree put in place to overhaul Chicago's unconstitutional policing. This announcement comes days after a jury convicted Chicago police officer Jason Van Dyke of second-degree murder for killing 17-year-old Laquan McDonald. He was also convicted of 16 counts of aggravated battery -- one count for each bullet he fired at the teen as the teen walked away from him.

This also follows more tone-deafness from the "law and order" presidency. Trump's speech to a law enforcement convention contained several comments about Chicago and its perceived police problem. But the problem Trump sees is police not policing hard enough. Trump wants stop-and-frisk brought back -- one of the key modifications contained in the consent decree.

Stop-and-frisk programs encourage unconstitutional stops. Just ask the NYPD, which saw its program changed drastically following a lawsuit brought against the city. Police officials and then-mayor Mike Bloomberg promised a dramatic spike in crime if officers weren't allowed to engage in suspicionless stops/frisks. This never materialized. Crime went down across the board.

Trump thinks a return to unconstitutional practices will solve Chicago's violent crime problem, but there's no evidence out there that provides a basis for this belief. Violent crime is already declining in Chicago, even without unconstitutional stops. What Trump wants is something people in Chicago don't want. And that includes the people who matter -- like Mayor Rahm Emanuel.

Mayor Rahm Emanuel said he welcomes federal reinforcements — in the form of more ATF, DEA and FBI agents — to “take down gang leadership” and stop the “drug trade.”

But that’s not the kind of help Donald Trump is offering. Returning to the more intensive “stop-and-frisk” procedures would run contrary to Chicago’s ongoing effort to repair shattered public trust between citizens and police, the mayor said.

“The failed policies he’s talking about have no place for a city that’s working together with communities about how to build — not only trust, but a collaborative and cooperative relationship,” the mayor said Monday.

“So, while resources are always welcome, the idea of what President Trump is talking about is not only not welcome — it’s antithetical to what we’re working on, and that is about a strong, pro-active, professional police department.”

Nonetheless, the DOJ will try to block the consent decree that might rebuild some of the trust the Chicago PD has thoroughly destroyed over the past several years. Why? Because the president said so.

Following an order from President Trump, Attorney General Jeff Sessions today announced that he is providing more resources for law enforcement in Chicago and filing a brief opposing a proposed consent decree on Chicago police.

The rationale is even worse. According to AG Jeff Sessions, the spike in violent crime in Chicago (which, again, has declined 20% over the last year) is due to police being hampered by the Constitution and not enough respect being shown by the general public.

There is one government institution, and one alone, that has the ability to make Chicago safer—that is the Chicago Police Department. Our goal should be to empower it to fulfill its duties, not to restrict its proper functioning or excessively demean the entire Department for the errors of a few. Make no mistake: unjustified restrictions on proper policing and disrespect for our officers directly led to this tragic murder surge in Chicago.

At a fundamental level, there is a misperception that police are the problem and that their failures, their lack of training, and their abuses create crime. But the truth is the police are the solution to crime, and criminals are the problem. The results of the ACLU settlement in November 2015, as revealed by Judge Cassel’s study, established this fact dramatically, conclusively, and most painfully for the City of Chicago. When police are restrained from using lawfully established policies of community engagement, when arrests went down, and when their work and character were disrespected, crime surged. There must never be another consent decree that continues the folly of the ACLU settlement.

"Unjustified restrictions on proper policing" apparently includes the Fourth Amendment. That's just the beginning of this garbage. From there, Sessions moves on to cite the only study on policing he agrees with -- one that decides correlation equals causation and ties increases in violent crime to a civil rights lawsuit settlement. The study has nothing to say about similar cities undergoing similar modifications to police programs that have not experienced violent crime increases. It's almost as if its authors started from their conclusion and worked backwards.

Sessions loves this faulty study and thinks it provides some sort of scientific basis for encroaching on civil liberties under the guise of making the city safer. But he's wrong about this, just like he's wrong about everything else in his statement.

Zachary Fardon, a former US attorney working in Chicago, says the DOJ's plan to block the consent decree will make things worse for the city and the Chicago PD. The problem isn't Constitutional restraints on policing. The problem is the relationship the PD has with the people it's supposed to protect.

What’s at stake here is not just constitutional policing. Lives are at stake. People are dying. Children are dying. Our city suffers, year after year.

Law enforcement is not the entire solution, but it’s a big part. A consent decree will give our cops support, training and the credibility they need to engage in effective and constitutional policing. A consent decree will give our South and West side citizens greater trust in our officers and institutions, and greater safety in their neighborhoods.

If Sessions spent more time in violence-afflicted neighborhoods, he would know that we still have kids who are growing up more afraid of police than of gangs. When that changes, we mark the beginning of a new Chicago.

The Chicago Tribune's editorial board is even more scathing in its assessment of Jeff Sessions' bumptious interloping:

Thank you for your interest in Chicago’s police consent decree, now in its final stages of development. We are confident your “statement of interest” will be given due consideration by U.S. District Judge Robert M. Dow Jr., who will hold public hearings on the draft agreement later this month.

We have just one question: Where were you in early 2017, when Chicago Mayor Rahm Emanuel pledged to follow through on the consent decree prescribed by the U.S. Department of Justice you took over when the White House changed hands?

Oh, now we remember: You wanted no part of it. You believed then, as you do now, that worrying about the civil rights of suspects gets in the way of fighting crime. Instead of doubling down on the hard work that had been done in Chicago, you tried (unsuccessfully) to torpedo Baltimore’s consent decree, which was then at this same public hearing stage.

If citizens don't trust the police, they won't report crimes, provide testimony, or supply evidence. All of this exacerbates the city's violent crime problem. When they see officers unwilling to do their jobs at all, let alone Constitutionally, they see there's no point in asking them for help. And when they see officers routinely escape punishment for misconduct and excessive force deployment, they begin to believe the cure might be at least as bad as the disease.

As the editorial points out, if Sessions really wanted to solve Chicago's problems, he wouldn't be trying to block a consent decree crafted with an eye on rebuilding destroyed trust. It ends with this extended middle finger.

Chicago doesn’t need or appreciate your drive-by assessment.

Trump and Sessions both believe the problem with American policing is that officers aren't being given the respect that is their God-given right. That's the beginning and end of it. The Constitution is just standing in the way of enforcing the law. Both are telling law enforcement agencies what they want to hear: that they're persecuted and misunderstood. Not a single member of this administration is willing to tell them what they need to hear: that destroyed trust takes time to rebuild and it can never be restored by engaging in the same behavior that destroyed it.

You may recall that we have discussed the complete chaos that is copyright collection societies in Kenya over the past few years. At issue in Kenya is that the country has multiple collection societies, which are overseen by a government sanctioned body that can request to look at their books to make sure artists are being paid appropriately, and officially licenses the collection societies themselves. Some of those collection groups have apparently not felt the need to respond to requests for oversight, leading the government to pull or not renew their licenses. Instead of being the end of the story, a number of those collection societies continue to threaten people and collect royalties anyway, acting essentially as an illegal extortion outfit.

Kenya is not the only African nation going through this, it seems. Across the continent on the opposite coast, the Nigerian Copyright Commission has been going through similar issues, specifically with a collection group called COSON.

The Nigerian Copyright Commission has filed a criminal charge against the Copyright Society of Nigeria, its Chairman, Chief Tony Okoroji, and principal officers for carrying out the duties of a collecting society without the approval of the Nigerian Copyright Commission.

The NCC, in a statement signed by its Director-General, Afam Ezekude, and made available to our correspondent on Tuesday, said, “In Charge No FHC/L/338C/18, filed on October 8, 2018 at the Lagos Division of the Federal High Court, the accused persons were alleged to have performed the duties of a collecting Society by demanding and collecting royalties from Noah’s Ark of 9 Sowemimo Street, GRA, Ikeja, Lagos.”

The commission also accused COSON of carrying on the business of negotiating and granting licences on behalf of copyright owners without its approval, thereby committing an offence contrary to and punishable under sections 39 (4), (5) and (6) of the Copyright Act Cap C 28 Laws of the Federation of Nigerian 2004.

This is now becoming a trend, with collection societies in several African nations simply and rather brazenly carrying on the business of shaking down businesses for music licensing fees, even beyond the point of their being legally allowed to do so. Frankly, given the copyright collection industry, this is not a huge leap to take. These societies already have many of the hallmarks of extortion rings, with their undercover "patrons" at businesses and their threat letters that might as well begin with, "Nice business you have there. Be a shame if anything happened to it."

But what this really shows, more than anything else, is how many of these copyright collection groups are devoid of any interest in the law, in the artists they represent, or in acting with even a modicum of ethical standards. Instead, these are money-making operations, and that money-making doesn't stop just because the law says they have to.

As we frequently note, most of the "smart" products you buy are anything but intelligent when it comes to your privacy and security. Whether it's your refrigerator leaking your gmail credentials or your new webcam being hacked in mere minutes for use in massive new DDoS attacks, the so-called "smart" home is actually often dumb as nails and potentially hazardous. So-called smart-televisions have been particularly problematic, whether that has involved companies failing to encrypt sensitive data, or removing features if you refuse to have your daily viewing habits measured and monetized.

Last year Vizio joined this not-so-distinguished club when it was discovered that the company's TVs had been spying on users for the last several years, starting back in 2014. Vizio's $2.2 million settlement with the FTC indicates that the company at no time thought it might be a good idea to inform customers this was happening. The snooping was part of a supposed "Smart Interactivity" feature deployed in 2014 that claimed to provide users with programming recommendations, but never actually did so. Its sole purpose was to hoover up your data and help Vizio sell it, without your express consent.

Vizio was also hit with a class action lawsuit over its actions, and the finishing touches on a settlement are just getting hashed out now. Lawyers representing consumers in the case state Vizio secretly tracked and sold the usage habits of around sixteen million Vizio owners for around three years. They're demanding a settlement of $17 million and a promise from Vizio that this won't ever happen again:

"Under the terms of the proposed settlement, Vizio will establish a $17 million settlement fund that will deliver money directly to consumers who bought Vizio Smart TVs that were subsequently connected to the Internet between February 1, 2014 and February 6, 2017. Vizio has also stopped tracking what is displayed on its Smart TVs unless a consumer consents to this tracking after receiving a prominent notification. And Vizio will delete the remaining contested viewing data in its possession."

What this actually means for consumers is a bit less impressive. Ars Technica took a closer look at the court filings in the case and found that consumers are likely to get all of somewhere between $13 and $31 for the inconvenience of being spied on without their permission. Lawyers will, unsurprisingly, get significantly more:

"When it’s all said and done, new court filings submitted on Thursday say each of those 16 million people will get a payout of somewhere between $13 and $31. By contrast, their lawyers will collectively earn a maximum payout of $5.6 million in fees."

On the plus side, insiders tell Ars Technica that the $17 million being doled out is more than Vizio made from selling this data, which usually isn't the case in other similar failures of trust (especially by cellular carriers, who'll often be fined millions for privacy violations that potentially netted them billions). And while Vizio's promises are good and all, many argue we need stronger public deterrents for companies that fail to respect user privacy, starting first and foremost with efforts to include privacy and security oversights in product reviews.