New York's court system is finally pushing back against the NYPD's refusal to provide better accounting of its forfeiture programs. Late last year, the NYPD informed people requesting information on seizures it had no way of compiling this data for them. Its $12 million software -- meant to provide "cradle-to-grave" tracking of seized property -- apparently couldn't handle routine inquiries about seizure totals.

When the NYPD did decide to talk about its forfeiture operations, it used incomplete and misleading numbers. It claimed to have forfeited only around $12,000 in 2015, something miles away from the $69 million estimate of seized cash-on-hand others had cobbled together using info the NYPD had managed to turn over. According to numbers the NYPD said its software couldn't compile, the department had generated $6 million in revenue in 2015 alone.

The Bronx Defenders, a group of public defenders, has been trying for nearly four years to force the NYPD to turn over documents related to its forfeiture programs. The NYPD has a few of these, including an unofficial program that turns personal belongings into "evidence" upon arrest and forces those with dismissed charges or acquittals to jump through a number of time-consuming and expensive hoops to reclaim their belongings -- which include things like cellphones, cash, credit cards, and prescription medication.

The NYPD's refusal to cooperate with the Bronx Defenders' FOIL request has led to a lawsuit. The city moved to have it dismissed, but Judge Arlene Bluth doesn't see much merit in the NYPD's arguments. Or actions.

Displeased by what she described as the New York City Police Department’s “troublesome” litigation tactics, a judge advanced a lawsuit that asks what happens to millions of unclaimed dollars seized in civil forfeitures.

[...]

Rejecting a motion to dismiss the case in Manhattan Supreme Court, Judge Arlene Bluth accused the NYPD and its former Commissioner Bill Bratton on Friday of playing games to avoid disclosures.

In the dismissal of the city's motion, the judge criticizes the NYPD for its constant claims its software can't provide the information the plaintiffs are seeking. The plaintiffs have pointed out they don't need aggregate data. They're willing to take raw data, copies of original documents, or whatever else might allow them to get a better handle on the forfeiture programs the NYPD doesn't want to discuss. The NYPD, however, keeps pointing at its expensive (but apparently worthless) PETS (Property and Evidence Tracking System) software and shrugging.

The judge points out [PDF] that the NYPD has pushed the Bronx Defenders into a catch-22 in hopes of keeping this information from being made public.

Respondents have effectively changed their argument from stating that no responsive documents exist to insisting that producing the information would be too burdensome. This argument directly relates to a troubling assertion by petitioner that respondents refused to confer with petitioner about the way in which these records are kept. 21 NYCR 1401.2(b)(2) requires the records access officer to "assist persons seeking records to identify the records sought, if necessary, and when appropriate, indicate the manner in which the records are filed, retrieved or generated to assist persons in reasonably describing records." It is obvious that it would be necessary to assist a petitioner seeking records from a database under the complete control of the agency and a database not available for public use.

Otherwise, petitioner is forced to make requests without any knowledge of the capabilities of the database. That is what has occurred here. Respondents do not directly contest this point in their reply to the cross-motion and simply assert that they have no duty to solicit additional information about the requests. While that might be true, there is a difference between soliciting more information and assisting the requestor in reasonably describing the records sought especially, where, as here, the records are kept on a specialized database.

In other words, the NYPD is claiming requesters must know all the nuances and intricacies of a database they're never allowed to access. If they don't, then the NYPD is under no obligation to assist them in any way. This is a common government tactic and not solely limited to the NYPD, although this agency has been referred to as worse than the FBI, CIA, and NSA when it comes to FOI responsiveness.

Judge Bluth goes on to state the NYPD's actions have been, at best, disingenuous.

The record before this Court shows that respondents have only now, more than two years after petitioner's FOIL request, attempted to describe the ways in which these records are kept. This type of "gotcha" litigation tactic is especially troublesome in a FOIL proceeding where petitioner does not have access to the database containing the requested information. Respondents' claims about the burdensome nature of producing individual invoices clearly demonstrates the purpose of assisting a requestor--it is consistent with the spirit of FOIL to let a requestor know how records are kept so that the petitioner can conform requests to receive the information sought and try to avoid unduly burdening an agency.

The NYPD has long shown it has no interest in following the letter of FOIL law, much less its spirit. For requesters, this means the path to responsive documents often leads through home team courtrooms. It's a trip not many are willing to make and the NYPD knows it.

As a parting gift to the incoming president, Barack Obama approved information-sharing rules which gave sixteen federal agencies access to unminimized NSA collections. The whole list of agencies involved in the information sharing can be found at the ODNI's (Office of the Director of National Intelligence) website:

Two independent agencies—the Office of the Director of National Intelligence (ODNI) and the Central Intelligence Agency (CIA);

Eight Department of Defense elements—the Defense Intelligence Agency (DIA), the National Security Agency (NSA), the National Geospatial- Intelligence Agency (NGA), the National Reconnaissance Office (NRO), and intelligence elements of the four DoD services; the Army, Navy, Marine Corps, and Air Force.

Seven elements of other departments and agencies—the Department of Energy’s Office of Intelligence and Counter-Intelligence; the Department of Homeland Security’s Office of Intelligence and Analysis and U.S. Coast Guard Intelligence; the Department of Justice’s Federal Bureau of Investigation and the Drug Enforcement Agency’s Office of National Security Intelligence; the Department of State’s Bureau of Intelligence and Research; and the Department of the Treasury’s Office of Intelligence and Analysis.

Yes, the collected communications can be masked to protect the identities of US persons, but that call is made on a case-by-case basis by the NSA and there are several government officials with the power to demand unminimized access.

This just isn't enough sharing, apparently. Patrick G. Eddington of CATO reports a new bill is being quickly and quietly pushed through the House to expand this sharing to several more federal agencies.

Introduced on April 26 by Rep. John Katko (R-NY), the “Improving Fusion Centers’ Access to Information Act” (HR 2169) is designed to plug any “information gaps” in state “fusion centers” by modifying the Homeland Security Act of 2002 to require DHS to

identify Federal databases and datasets, including databases and datasets used, operated, or managed by Department components, the Federal Bureau of Investigation, and the Department of the Treasury, that are appropriate, in accordance with Federal laws and policies, to address any gaps identified pursuant to paragraph (2), for inclusion in the information sharing environment and coordinate with the appropriate Federal agency to deploy or access such databases and datasets;

The DHS is already on the list of agencies with access to NSA collections. This bill would allow it to give underling agencies access to the same info. Some notable three-letter agencies on that list include CBP, ICE, and TSA. While the NSA's collections are supposed to serve a national security purpose, the FBI uses its access for standard criminal investigations. There's no reason to believe these agencies won't do the same.

But the bill has friends everywhere in the House. The bill was passed after 40 minutes of debate, thanks to a suspension of normal voting rules. The normal concerns for national security were voiced, but nothing was said of the NSA collection's routine use in routine, domestic criminal investigations. That Congress considers expanded information sharing with domestic security agencies "non-controversial" (hence the sped-up voting process) is an indication of the majority's view of the privacy/security balancing act.

Worse, if the bill becomes law, the worst, most ineffective parts of the DHS will be given access to data and communications gathered by the NSA. Fusion centers -- which are already known for being mostly useless, when not actively doing damage to Constitutional rights -- will have even more information to misuse. The bill would give bicycles to fish in all 50 states. The only thing guaranteed is the new powers will be used badly. Eddington quotes from a 2012 report from the Senate Homeland Security Committee, which found DHS Fusion Centers to be expensive, useless, and a harm to the public.

The Department of Homeland Security estimated that it had spent somewhere between $289 million and $1.4 billion in public funds to support state and local fusion centers since 2003, broad estimates that differ by over $1 billion.

The investigation found that DHS intelligence officers assigned to state and local fusion centers produced intelligence of “uneven quality – oftentimes shoddy, rarely timely, sometimes endangering citizens’ civil liberties and Privacy Act protections, occasionally taken from already-published public sources, and more often than not unrelated to terrorism.”

This is where the NSA's collections will ultimately end up: in the hands of DHS branch offices that do little more than repeatedly screw up. Only now, they'll be able to do significantly more harm to Americans' civil liberties. Add to that the routine clusterfuck that is the CBP, ICE, and TSA, and you have a recipe for massive Fourth Amendment violations under the pretense of national security.

This week we've got a special crossover episode with our friends at TechFreedom. Mike joined their Tech Policy Podcast recently to discuss notice and takedown systems and the future of internet copyright, and we're cross-posting the conversation as an episode of the Techdirt Podcast too.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Printer companies have long used the fairly straightforward business model of "sell cheap printers, and make all the money by price gouging the ink." As we've noted, one study found that a swimming pool filled with printer ink would cost you almost $6 billion at retail (and that was almost 15 years ago, so the number is likely much higher today). For this business model to function at truly monopolistic pricing levels, it requires that the printer manufacturers figure out ways to block third parties from selling cheaper ink for their printers. Lexmark has been among the most aggressive in doing so, and has gone for the intellectual property trifecta: abusing copyright, trademark, and patent laws to try to block third party ink sales. Back in 2004, it lost its attempt to abuse copyright law to block sales. In 2014, the Supreme Court told Lexmark to stop abusing trademark law to scare off customers of third party ink sellers. And, today, the Supreme Court has completed the triad and told Lexmark that it cannot abuse patent law to stop third party ink cartridges as well. In the process, the Supreme Court, once again, smacked down the Court of Appeals for the Federal Circuit (CAFC), the appeals court that is supposed to be the "experts" in patent law, but keep getting the basics wrong.

The specific issue here was one of patent "exhaustion." That is, when a manufacturer (legally) sells a patent product, has it "exhausted" its rights to its patents regarding that particular product, or can it continue to hang onto those rights and block legal purchasers from doing things with it. This is important, if you believe in the right to actually own what you buy. Lexmark tried to argue that even after it sold its printers, it could block third party ink (or, in this specific case, laser toner) cartridges, by claiming that using such cartridges violated its patents. If you follow this stuff, you may remember two previous big Supreme Court cases, dealing with the concept of "exhaustion." There was the Kirtsaeng case regarding copyright exhaustion (once you've sold a copyrighted work, you can't stop the buyer from reselling it) and Quanta v. LG that said the same basic thing for patents.

But CAFC twisted itself in knots to argue that this case was different, saying that Quanta was only about blocking sales, and this case -- titled Lexmark v. Impression Products at CAFC and now Impression Products v. Lexmark at SCOTUS -- was different because it involved a "limited license" rather than a direct sale. That is, Lexmark basically sold its products with a license agreement, saying "hey, don't use third party cartridges, and if you do, we effectively are pulling our patent license and will sue you for infringement."

The Supreme Court is not impressed with the CAFC's pretzel logic and notes that it's pretty damn obvious that once you've sold a patented product, you've exhausted the right to pull back the license on that product and claim infringement:

We conclude that Lexmark exhausted its patent rights in these cartridges the moment it sold them. The single-use/no-resale restrictions in Lexmark’s contracts with customers may have been clear and enforceable under contract law, but they do not entitle Lexmark to retain patent rights in an item that it has elected to sell.

The Patent Act grants patentees the “right to exclude others from making, using, offering for sale, or selling [their] invention[s].” ... For over 160 years, the doctrine of patent exhaustion has imposed a limit on that right to exclude.... The limit functions automatically: When a patentee chooses to sell an item, that product “is no longer within the limits of the monopoly” and instead becomes the “private, individual property” of the purchaser, with the rights and benefits that come along with ownership.... A patentee is free to set the price and negotiate contracts with purchasers, but may not, “by virtue of his patent, control the use or disposition” of the product after ownership passes to the purchaser.... The sale “terminates all patent rights to that item.” ...

This well-established exhaustion rule marks the point where patent rights yield to the common law principle against restraints on alienation. The Patent Act “promote[s] the progress of science and the useful arts by granting to [inventors] a limited monopoly” that allows them to “secure the financial rewards” for their inventions.... But once a patentee sells an item, it has “enjoyed all the rights secured” by that limited monopoly.... Because “the purpose of the patent law is fulfilled . . . when the patentee has received his reward for the use of his invention,” that law furnishes “no basis for restraining the use and enjoyment of the thing sold.”

Simple, right? And, once again, the (unanimous) SCOTUS ruling is not kind to the lower judges at CAFC:

This venerable principle is not, as the Federal Circuit dismissively viewed it, merely “one common-law jurisdiction’s general judicial policy at one time toward anti-alienation restrictions.” ... Congress enacted and has repeatedly revised the Patent Act against the backdrop of the hostility toward restraints on alienation. That enmity is reflected in the exhaustion doctrine.The patent laws do not include the right to “restrain[ ] . . .further alienation” after an initial sale; such conditions have been “hateful to the law from Lord Coke’s day to ours” and are “obnoxious to the public interest.”... “The inconvenience and annoyance to the public that an opposite conclusion would occasion are too obvious to require illustration.”

And then, to help the CAFC out, after quoting another case saying that this result is "too obvious to require illustration"... immediately provides an illustration. In other words, "hey CAFC, how can you be this stupid? You even need us to draw you a picture."

But an illustration never hurts. Take a shop that restores and sells used cars. The business works because the shop can rest assured that, so long as those bringing in the cars own them, the shop is free to repair and resell those vehicles. That smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale. Those companies might, for instance, restrict resale rights and sue the shop owner for patent infringement. And even if they refrained from imposing such restrictions, the very threat of patent liability would force the shop to invest in efforts to protect itself from hidden lawsuits. Either way, extending the patent rights beyond the first sale would clog the channels of commerce, with little benefit from the extra control that the patentees retain. And advances in technology, along with increasingly complex supply chains, magnify the problem.

As an aside, this "illustration" being used to mock CAFC is likely to come in handy elsewhere. We've been writing a bunch lately about companies trying to kill off "right to repair" laws, and here's the Supreme Court, in a unanimous decision written by the Chief Justice, using the right to repair as a fundamental and obvious point. "That smooth flow of commerce would sputter..." Indeed.

The opinion continues to smack down CAFC later, noting that it "got off on the wrong foot."

The Federal Circuit reached a different result largely because it got off on the wrong foot. The “exhaustion doctrine,” the court believed, “must be understood as an interpretation of ” the infringement statute, which prohibits anyone from using or selling a patented article “without authority” from the patentee.... Exhaustion reflects a default rule that a patentee’s decision to sell an item “presumptively grant[s] ‘authority’ to the purchaser to use it and resell it.” ... But, the Federal Circuit explained, the patentee does not have to hand over the full “bundle of rights” every time.... If the patentee expressly withholds a stick from the bundle—perhaps by restricting the purchaser’s resale rights—the buyer never acquires that withheld authority, and the patentee may continue to enforce its right to exclude that practice under the patent laws.

The misstep in this logic is that the exhaustion doctrine is not a presumption about the authority that comes along with a sale; it is instead a limit on “the scope of the patentee’s rights.”... The right to use, sell, or import an item exists independently of the Patent Act. What a patent adds—and grants exclusively to the patentee—is a limited right to prevent others from engaging in those practices.... Exhaustion extinguishes that exclusionary power.... As a result, the sale transfers the right to use, sell, or import because those are the rights that come along with ownership, and the buyer is free and clear of an infringement lawsuit because there is no exclusionary right left to enforce.

There was a separate, but related question in the case as well, concerning "international" exhaustion. The above parts were about what happened to cartridges Lexmark sold within the US. But Lexmark had argued separately that products sold outside the US shouldn't be subject to patent exhaustion, so if those cartridges were then sold back into the US, they should be subject to infringement cases, since the exhaustion had not occurred under US patent law (the same issue that came up under copyright in the Kirtsaeng case). And, here, SCOTUS (at 7 to 1, with Justice Ginsburg dissenting) found that the same applies to patent law, pointing to the ruling in Kirtsaeng, ans saying that the analysis is effectively the same here:

Applying patent exhaustion to foreign sales is just as straightforward. Patent exhaustion, too, has its roots in the antipathy toward restraints on alienation... and nothing in the text or history of the Patent Act shows that Congress intended to confine that borderless common law principle to domestic sales. In fact, Congress has not altered patent exhaustion at all; it remains an unwritten limit on the scope of the patentee’s monopoly.... And differentiating the patent exhaustion and copyright first sale doctrines would make little theoretical or practical sense: The two share a “strong similarity . . . and identity of purpose,” ... and many everyday products—“automobiles, microwaves, calculators, mobile phones, tablets, and personal computers”—are subject to both patent and copyright protections.... There is a “historic kinship between patent law and copyright law,” ... and the bond between the two leaves no room for a rift on the question of international exhaustion.

The opinion also makes fun of the White House for weighing in on this case with little relevant to add, and with a confusion about the fact that patent law is based on the public interest, rather than as what's in the best interest for the two parties in the transaction:

The Government has little more than “long ago” on its side. In the 1890s, two circuit courts—in cases involving the same company—did hold that patentees may use express restrictions to reserve their patent rights in connection with foreign sales.... But no “coalesc[ing]” ever took place: Over the following hundred-plus years, only a smattering of lower court decisions mentioned this express-reservation rule for foreign sales.... And in 2001, the Federal Circuit adopted its blanket rule that foreign sales do not trigger exhaustion, even if the patentee fails to expressly reserve its rights.... These sparse and inconsistent decisions provide no basis for any expectation, let alone a settled one, that patentees can reserve patent rights when they sell abroad.

The theory behind the Government’s express-reservation rule also wrongly focuses on the likely expectations of the patentee and purchaser during a sale. Exhaustion does not arise because of the parties’ expectations about how sales transfer patent rights. More is at stake when it comes to patents than simply the dealings between the parties, which can be addressed through contract law. Instead, exhaustion occurs because, in a sale, the patentee elects to give up title to an item in exchange for payment. Allowing patent rights to stick remora-like to that item as it flows through the market would violate the principle against restraints on alienation. Exhaustion does not depend on whether the patentee receives a premium for selling in the United States, or the type of rights that buyers expect to receive. As a result, restrictions and location are irrelevant; what matters is the patentee’s decision to make a sale.

As for Ginsburg's dissent over international exhaustion, she also dissented from Kirtsaeng, and more or less repeats that argument here.

In the end, this is a big win for consumer rights, and blocks companies from trying to abuse patent law from restricting how people can actually use products they bought.

More bag-sorting and intrusiveness awaits more flyers thanks to the DHS and TSA. The TSA has already banned electronic devices larger than a cellphone from being brought on board flights originating in 10 predominantly Muslim countries. Now, it wants to extend that ban to European nations. For now, the new inconvenience is in its test phase.

Rather than make things safer, officials now want lithium ion batteries and other similar fire hazards to be stowed in areas where no one's likely to notice a developing fire and subject them to the sort of abuse airline employees save for items they haven't personally purchased. All in the name of safety, and all in the name of unspecified threats.

The additional stupidity is this would only apply to flights in and out of the US, but not to domestic flights… at least not at this point. DHS boss John Kelly sort of clarified this on Fox News last week, utilizing a very governmental vagueness.

WALLACE: I want to pick up on aviation because you are in the process of making some big decisions on aviation. And I want to do a lightning round, quick questions, quick answers.

Are you going to ban laptops from the cabin on all international flights both into and out of the U.S.?

KELLY: I might. That's a quick answer.

WALLACE: Yes, well, expand a little bit.

KELLY: Well, there’s a real threat. Numerous threats against aviation, that's really the thing that they are obsessed with, the terrorists, the idea of knocking down an airplane in flight, particularly if it’s a U.S. carrier, particularly if it's full of mostly U.S. folks, people. It's real. You know that I implemented I think on the 21st of March a restriction on large electronic devices in the cabins from ten points of origin.

But wait, there's more! Not only will laptops face a potential ban on international flights, folks flying domestic may be forced to do even more sorting of their carry-on goods.

WALLACE: Another lightning round question, I do need a quick answer here because we’re running of time. The TSA is testing tighter screening of carry-ons, and the idea that people who bring their carry-ons are going to have to unpack them and put food in one bin, and electronics in the another bin, and paper in another bin.

Are you going to spread that nationwide and what’s that going to do to the screening lines?

KELLY: Yes, I mean, the reason we’ve done, TSA, of course, works for me. The reason we've done that is because of -- people trying to avoid the $25 or $50 or whatever it is to check a bag are now stuffing your carry-on bags to the point of, you know -- well, they can't get any more in there. So, the more you stuff in there, the less the TSA professionals that are looking at what's in those bags through the monitors, they can't tell what's in the bags anymore. So, if you put --

WALLACE: So, are you going to do that nationwide?

KELLY: We might, and likely will.

There's a good chance this move will receive unanimous support from airlines. Not that airlines can actually create travel safety policy, but this policy will likely result in more checked baggage. It likely won't have any effect on travel safety, but it will at least give TSA agents more opportunities to convert passengers' electronic devices for personal use.

It's also going to create longer lines at security checkpoints, as bags are unpacked and sorted before scanning, then reassembled afterwards. This new inconvenience also works out well for the TSA, as it serves as the perfect advertisement for its Precheck service -- the one where the government sells your rights back to you for a small fee.

Again, this will have a negligible effect on travel safety. In fact, it could be argued that piling up people at security checkpoints makes them a much more tempting target than going through all the logistics of smuggling weapons and explosives onto a plane. At best, security will be no better than it was prior to the bag sorting, and it definitely will make travelers less secure. As Mike pointed out earlier, taking steps to separate people from their electronic devices will lead to all sorts of sensitive information being stored in unsecured areas.

[F]orcing people to give up their laptops has a secondary (but very serious) problem: for anyone traveling with sensitive information (lawyers, doctors, reporters, business execs, public officials, etc.) giving up your laptop is a massive security risk.

All of this makes much more sense when you realize the head of the DHS isn't in the business of finding smart solutions, but rather selling fear to willing buyers.

Homeland Security Secretary John Kelly on Friday said the terror threat is worse than most realize, saying some people would "never leave the house" if they knew the truth.

“I was telling [Fox host] Steve [Doocy] on the way in here, if he knew what I knew about terrorism, he’d never leave the house in the morning,” Kelly said on “Fox & Friends.”

And yet, millions of Americans not only leave the house, but fly millions of air miles without incident. I'm sure Kelly believes this is mostly due to the TSA's ever-shifting rules on carry-on luggage, but the reality is that terrorist attacks are still an anomaly -- outliers on the curve of human existence, at least here in the US. The proposed measures will guarantee more money flows to airlines and TSA, but little else.

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Since the FCC's decision to begin gutting net neutrality earlier this month, broadband providers have been busy as hell trying to convince the public that gutting these essential consumer protections is just no big deal. We, of course, had that horrible Verizon video in which the company not only falsely claimed that net neutrality isn't being killed, but tried to pretend ISPs like Verizon didn't just spend a decade trying to kill it. Other ISPs like Comcast have penned similar "nothing to see here, guys" missives, in which they insist this whole thing is all some kind of big misunderstanding.

While these ISPs use polite, sensible-sounding public statements to insist that nothing's really changing and none of this will hurt consumers (that's false, if it needs repeating), their usual assortment of think tankers, astroturfers, lobbyists, consultants, hired economists and other "doller per holler" policy folks are under no such constraints, and have been busy taking an already hyperbolic debate to an entirely new level.

For example, just two days removed from the recent Manchester bombing, Forbes ran this abomination of an attempt at prose by former FCC Commissioner Harold Furchtgott-Roth, who now works at the ISP-funded Hudson Institute. In none-too-subtle fashion, Furchtgott-Roth uses the Manchester attack to suggest that none of this bloodshed would have happened if it wasn't for net neutrality protections:

A sensible question is why civilized governments do not seek to deprive terrorists of unfettered access to the Internet...Sadly, here in America, limiting access to the Internet would be illegal under the euphemistic term “network neutrality,” the two-year-old experiment in federal regulation of the Internet...To its supporters, network neutrality is a bulwark of civilization. But network neutrality is also a shield for terrorists who seek to destroy civilization.

If Furchtgott-Roth was hoping to craft a missive perfectly illustrating he has no idea how any of this works, this stumbling bit of prattle was a smashing success.

So, one, what kind of person, just two days removed from such a grisly attack, could think writing anything like this was a good idea? That said, to claim that you can somehow magically prevent just "terrorists" from accessing the internet quite clearly indicates he has no idea how the internet or extremism works. Net neutrality encourages the internet as a level playing field free of the anti-competitive or editorial meddling of giant telecom conglomerates comfortable in uncompetitive markets. Furchtgott-Roth's problem isn't with net neutrality -- it's just that he thinks government doesn't censor internet content enough.

So, quite clearly on this list of things Furchtgott-Roth doesn't understand sits free speech, first and foremost:

Under network neutrality, broadband companies--such as AT&T, Charter, Comcast, Sprint, T-Mobile, and Verizon—are prohibited from discriminating against any lawful websites or content. There is no clear distinction between lawful and unlawful websites and content. The net result is a broadband company could and likely would be sued for blocking websites housing information about recruitment and organization for ISIS, Al Qaeda, the Ku Klux Klan, or other terrorist groups. It is also illegal to block content that instructs viewers on how to manufacture explosives such as nail bombs.

So again, Furchtgott-Roth's problem here clearly isn't with the relatively basic net neutrality rules the FCC adopted. His problem is with the fact that governments and broadband providers aren't censoring internet content enough. But it's not the FCC's net neutrality rules that prohibit that: it's simply common sense. Even the large ISPs, which have said all manner of stupid things on this subject, have no problem with the anti-blocking provisions of the rules. They have zero interest in blocking specific websites, or the public relations shitshow that would occur were they to start.

Bizarrely, the author then proceeds to try and argue that gutting net neutrality rules would be a wonderful opportunity for ISPs to compete -- based on which one engages in the most creative, ham-fisted censorship of internet content:

A better approach would be to allow consumer preferences and competitive market forces for ISPs to fight against terrorism. In Israel, an ISP Internet Rimon provides filtering technology to block indecent images. A similar approach could be used in the United States to block terrorism. Different ISPs could compete on the basis of their degree of “anti-terrorist” efforts. Many individuals would be attracted to an anti-terrorist ISP. Some state and local governments might mandate purchase of such services by government institutions.

This ignores that there's little to no competition in the US broadband market, ensuring that this extremely distorted vision of competition would never materialize. Now, you can argue that if you fixed broadband competition you'd fix net neutrality, since the latter is simply a symptom of the former. But our government has long turned a blind eye to this problem at large campaign contributor behest, leaving us with the kind of anti-competitive mess we're trying to fix today. Insisting that gutting these consumer protections and dramatically ramping up censorship somehow fixes any of this is the intellectual equivalent of indigestion.

Having had a front-row seat for most of it, I've seen all manner of horrible arguments in the net neutrality debate. And while some have teetered close to this level of recklessness and absurdity (like the time Ajit Pai insisted net neutrality somehow encouraged dictators in Iran and North Korea), Furchtgott-Roth somehow managed to take things to an entirely new level. Using the Manchester bombing as a prop to justify dismantling essential consumer protections is simply grotesque, and represents a new, embarrassing low in what was already a swampy schlog of a technology policy debate.

It's the normal state of things, but familiarity makes it no less enjoyable to observe: power changes hands in the White House and suddenly everything the previous president authorized with the support of his followers becomes a dangerous weapon in the hands of the new guy. The only surprising thing is the cycle never ends.

As has been noted here, longtime fans of government surveillance under Obama were suddenly deeply concerned about Trump's command of the nation's spycraft. Then there were all those Republicans who helped assemble the surveillance machinery in the wake of the 9/11 attacks, expressing their displeasure with the FBI, NSA, and others using powers they'd granted them. Domestic surveillance is fine, they argued. Years later, it's NIMBY but for recently-elected presidents.

But there's a darker current running below the irony and schadenfreude. Both sides applaud possible surveillance abuses when they harm their political enemies, but act like these are Espionage Act violations when the target is one of their own. The ultimate problem isn't the right/left, Republican/Democrat partisan divide and the hypocrisy that goes with it. The problem is the abuse/misuse of surveillance powers for political gamesmanship.

The FBI didn't go rogue after Trump canned Director James Comey in the most duplicitous, chickenshit way ever. It had been coloring outside of the lines for months, if not years, with Comey making the most of his many grandstands to push his personal agenda at the expense of the agency's. He routinely made statements others in the DOJ have refused to back up and broke protocol (twice) by openly discussing investigations that resulted in no criminal charges.

The Trump presidency has been notable for the number of leaks it has prompted, which seem to spring from nearly every agency with access to collected intelligence. The reaction to the leaks by the Trump Administration has been awful in pretty much every way, and the looming threat of prosecution by Jeff Sessions' god-guns-and-government DOJ hasn't done much to slow the bleeding.

What's being overlooked is the danger this autonomy poses. While some would love to see every presidential administration undermined by intelligence leaks [raises hand], this isn't always a good thing. Nor is it something that should be cheered on without reservation when it's the other side sustaining damage. Agencies with access to domestic communications (and there are a lot of them, thanks to loosened information-sharing restrictions) have their own agendas to push, too, and they're rarely directly aligned with either party.

As Julian Sanchez notes, partisans need to stop cheering when things go their way and crying foul when they don't. The problem goes far beyond politics and stabs at the heart of rights and protections the government is supposed to be ensuring for everyone.

If we take it at face value (leaving aside whether that’s proper), the Flynn intercept reveals a president-elect apparently worried that his foreign policy would be undermined by his own government’s intelligence agencies. It would be easier to dismiss that fear as yet another fit of Trumpian paranoia if it didn’t seem like we were learning about that conversation from wiretaps.

Progressives who’ve recently learned to stop worrying and love the surveillance state should think hard about the precedent such leaks set — and the implicit message they send to political actors — even if any particular instance can be justified as serving the public interest. The leaks may not be, as conservative media would have it, the only real scandal, but nobody should be too enthusiastic about the prospect of living in a country where officials who antagonize spy agencies find their telephone conversations quoted in news headlines.

Speaking personally, as much as I'd like to see every president supportive of constant surveillance and law enforcement mission creep be the victim of an apparatus they think they control, I also want overreaching agencies to be subjected to the same involuntary transparency and accountability. But the power has tipped too far in one direction, thanks largely to the alienating acts of the current administration. The IC is not-so-subtly sending out a warning to meddling politicians and enemies of their desires. In an effort to undermine an administration they don't like, unnamed intelligence community operatives are undermining the entire system. It won't stop here. It will only get worse.

The response to the leaks only aggravates the issue. A desire to punish leakers for exposing the administration's misdeeds will result in harsher policies and punishments for whistleblowers, who cannot help but be caught up in the purge the DOJ is threatening. The agencies themselves have already put themselves in the position to nullify their oversight through the existential threat of leaked communications. A hunt for whistleblowers and leakers (often the same thing) will only increase the agencies' autonomy, making them even more dangerous in the future.

One of the longest-running lawsuits over NSA surveillance is still no closer to a final decision, but at least we may get to take a look at a few more Section 702 documents. Jewel vs. NSA (filed in 2008) predates the Snowden leaks by five years and, judging by the speed of the government's responses, will probably hit the 10-year mark before everything is sorted out.

The EFF reports a production order has been handed down by the court, which will hopefully light a fire under the recalcitrant government.

In 2016 the Court had ordered that the plaintiffs could seek discovery. After over a year of government stonewalling, the Court has now ordered the government to comply with a narrowed set of discovery requests by August 9, 2017. The discovery is aimed at whether plaintiffs' communications were subject to the mass NSA program tapping into the Internet backbone called Upstream. The court also ordered the government to file as much of its responses as possible on the public court docket.

Whether or not most of these documents will make their way into the public eye remains to be seen. But the court's order [PDF] contains a hypothetical indicating it's expecting a lot of production.

By 6-2-17: Government counsel to inform the Court if, hypothetically, a career law clerk was granted security clearance, would she be able to view all documents, including those already produced in classified submissions.

The court will still handle some of the discovery behind closed doors, but it's hoping to keep itself from being buried in paperwork. The order tells the government to move forward with its production in phases. It also asks the plaintiffs to narrow their discovery request "significantly." By August, the court would like to have this wrapped up and the case moving forward again.

Of course, this order has been delivered to a government that has argued no one has standing to challenge domestic surveillance and one that conveniently interpreted the Section 215 shutdown as permission to destroy evidence. The DOJ will continue to do everything it can to stem the flow of information to the public. It already spent a year ignoring the court's production order. I'm sure it will find a way to turn two months of discovery obligations into a much longer order -- perhaps even long enough to keep more Section 702 info out of the public's hands until after it obtains the year-end renewal it so badly wants.

This week, both winning comments on the insightful side came in response to our post about more legislators jumping on the "blue lives matter" bandwagon. Since the top comment was actually further down the same thread as the runner up, this week we'll present the winners in reverse order, starting with the second place winner from Anonymous Anonymous Coward who swooped in with the first comment on the post:

Another good take on this subject...

...From Scott Greenfield at Simple Justice: Only The Pure Shall Prevail

They are paid to take risks, that's the job description. Why more protections? It is simply a political ploy to 'enhance' ones 'anti crime' credentials leading up to the next election. This has nothing to do with the criminals (who might in fact not be criminals) and everything to do with politics.

That comment garnered one nonsensical, trollish response to which Rusty Eulberg offered a retort that won first place for insightful:

garbage collectors have more risk, with much less pay and respect:
https://www.bloomberg.com/graphics/2015-dangerous-jobs/

For editor's choice on the insightful side, we head to our post about Disney hitting a record $7-billion in box office returns last year (despite the MPAA crowing about piracy). Jeffrey Nonken examined anti-piracy efforts through a more traditional retail lens:

Used to be that retail stores had clerks that would fetch your items for you, ring up the total and send you on your way.

That changed. http://mentalfloss.com/article/85551/market-disrupted-how-piggly-wiggly-revolutionized-grocery-shopp ing Now this revolutionary new idea is pretty much universal: you fetch your own items, bring them to the clerk, who then rings you up and send you on your way.

Are there problems with this model? Yep. It makes it easier for customers to shoplift; there's a certain amount of loss as a result. But retail stores have discovered that the benefits of the new model FAR outweigh the drawbacks, and they were making more profit at a lower cost while making the customers happier.

How many gas stations offer full service these days?

And it's not stopped there. Now -- due in part to ubiquitous, inter-connected electronic forms of payment -- stores are starting to have you check YOURSELF out, with one clerk supervising a handful of registers. I don't know if shrinkage increases as a result, but obviously it's worth it to them. (AND the extra cost of the new equipment, conversion of several checkout lanes, plus extra training for the clerks.) Gas stations have been doing this for a while; I never need to go inside or talk to a clerk unless the receipt printer is broken, or I need a snack. Swipe card, fill tank, drive off.

Obviously steps are taken to keep shrinkage to a minimum, but it's otherwise treated as an inevitable cost of doing business. The most I ever see is a few particularly high-risk items being made a special case of.

Hollywood has gone the opposite direction: instead of treating a minor amount of shrinkage as inevitable, but worth the cost due to economies of scale, they're pouring tremendous amounts of effort into reducing shrinkage at comparatively high costs. One of which is making their customers unhappy. Same with game companies, who toss tons of money at DRM that only inconveniences the people who actually buy their games.

It's probably a form of Loss Aversion. https://en.wikipedia.org/wiki/Loss_aversion They're so afraid of losing a little that they don't see how much it's costing to prevent the loss. And they're losing anyway, which is why they keep doubling down.

"Fanaticism consists of redoubling your efforts when you have forgotten your aim." - George Santayana

Learn from Piggly Wiggly, guys. It's not too late.

Of course, there's one critical point missing there, which orbitalinsertion provided in a reply reminding us that copying is not theft:

It isn't much shrinkage either, when there is no actual loss. Not even distribution costs. Just someone potentially not making more money. Mostly it is just people who would never see something otherwise, so we are not even talking lost sales except for a small fraction of infringement. Which isn't as all pervasive as they claim anyway. It would be like Piggly Wiggly claiming their shelves are constantly empty from theft while making 10,000% profits somehow.

Over on the funny side, we remain on that post for our first place winner — an anonymous comment suggesting Disney's record might not invalidate piracy fears after all:

You do have to realize that without piracy, Disney would've made $7.1 billion in the global box office.

In second place, we've got a comment from Hugo S Cunningham in response to the critical Supreme Court ruling that shut down patent jurisdiction shopping and its associated havens:

Marshall TX can file for Federal Disaster relief...

For editor's choice on the funny side, we start out with one more comment on that post, this time from K'Tetch on the next steps forward:

I guess I should sue now, because the SCOTUS has violated my patent for 'reducing jurisdiction shopping for patent infringement suits" - I'll see them in East Texas.

And finally, we've got a sarcastic response from Chris ODonnell to the Boston Globe's bizarre decision to block readers who are using their browser's privacy mode:

Lucky for The Globe 100% of their news is proprietary and can't be found on any other site.

That's all for this week, folks! We're off tomorrow for Memorial Day then back to our regular schedule on Tuesday.