Five Years Ago

This week in 2003, we kicked off the year by witnessing things start to go seriously wrong for a little law firm by the name of Prenda. Well, that and noting how, as usual, nothing at all was entering the public domain (a situation that looked like it could be extended thanks to the supreme court). The Megaupload case was mired in the courts and some companies were getting impatient. And we saw some pretty stunning DMCA nonsense with a takedown over a barely-customized default blog login page.

Ten Years Ago

This week in 2008, Hollywood was getting a taste of trade negotiation problems, the RIAA was admitting some errors in the Jammie Thomas trial (while flubbing an opportunity for some not-awful PR), and RealNetworks (which was still around) was shutting down competitors. We couldn't help think the entertainment industry needed to learn from the folks making a living by selling public domain content on eBay.

Fifteen Years Ago

This week in 2003 (and the last few days of 2002), the internet was changing and growing: it appeared that criminals had really figured out to use it, and there was a debate over dropping the capital "I" at the beginning, and of course some time to mourn the death of the payphone. We saw the DMCA abused to take down an entire web host over one claim of infringement, and record labels try to claim that even 95 years is too short for copyright, while one author was trying to challenge the unusual copyright on Peter Pan, and the tech industry was gearing up to fight back against DRM. Also, we celebrated the 20th birthday of TCP/IP.

The Supreme Court will deliver its ruling on the issue of cell site location info later this year, possibly changing the contours of the Third Party Doctrine for the first time since its erection out of thin air more than four decades ago. Until then, a patchwork of decisions has been handed down by state courts, some finding state law provides more protection for cell phone users than the US Constitution. At the federal level, however, years of precedent has resulted in a mostly-unified front by appellate courts. According to their decisions, cell site location info is a third-party record, undeserving of Fourth Amendment protections.

One of New York State's appellate courts has sided with the federal level. According to its recent decision, there are no privacy expectations in CSLI collected and stored by cell phone providers.

[W]e conclude that the acquisition of that information was not a search requiring a warrant under either the federal or state constitution. As the People point out, this case involves only historical cell site location information, contained in the business records of defendant's service provider, which placed his phone within a certain cell site "sector" at the time he used the phone to make calls, send text messages, or receive calls or messages.

Under these circumstances, we conclude that the acquisition of the cell site location information was not a search under the Fourth Amendment to the federal constitution because defendant's use of the phone constituted a voluntary disclosure of his general location to his service provider, and a person does not have a reasonable expectation of privacy in information voluntarily disclosed to third parties…

The court goes on to declare that even if it had felt like suppressing the evidence and extending privacy protections to CSLI, it wouldn't have helped the defendant.

As a final matter, we agree with the People that any error in the court's refusal to suppress defendant's cell site location information is harmless. The evidence of defendant's identity as a participant in the crime is overwhelming, and there is no reasonable possibility that the verdict would have been different if the location information had been suppressed…

This decision will stand even if the Supreme Court upends 40+ years of Third Party Doctrine rulings. Decisions like these are rarely retroactively applied. Even if Carpenter wins his Supreme Court case, it's likely the lower court will allow the evidence to remain in play, pointing out officers were reasonable to rely on precedential decisions finding no Fourth Amendment protections for third party records. The same goes for the defendant here. Post-decision alterations to the contours of the Constitution rarely help those whose rights have been determined to be violated after the fact.

Ignorance of the law is no excuse… unless you're a police officer. Then it's a magical world of immunity and good faith exceptions! But it gets even better. In Florida, ignorance of the law is highly-profitable.

On its face, Florida’s pedestrian statute 316.130(11) seems straightforward enough: fail to cross a street in a crosswalk where required, and you are liable for a ticket ranging from $51 to $77. The authorities across the state issue hundreds of the tickets every year with the public claim that they were trying to cut down Florida’s outsize number of pedestrian deaths.

Good for them. Whatever the government can do to cut down on deaths is probably good, considering the average Floridian's propensity for harming themselves and others in extremely creative ways. The problem is it's unclear how much safer Florida residents are going to be when they're being busted for violations they didn't commit. ProPublica looked at the data and found that a vast majority of pedestrian tickets aren't backed by the law.

In Broward County, for instance, around 70 percent of the more than 3,300 crosswalk tickets issued in those years were given in error, according to the Times-Union/ProPublica examination. In Hillsborough County, where more than 500 crosswalk tickets were given, the percentage of bad tickets was around 80 percent; in Orange County, around 56 percent of the almost 650 tickets were given erroneously.

The letter of the law -- which we are reminded is what really counts when the government enforces it -- says no one is allowed to cross in the middle of street between two adjacent intersections with traffic lights. This is supposed to route people to intersections with crosswalks controlled by signals, rather than playing in traffic or taking their chances at less-controlled intersections. This isn't how the law is being enforced. Police are ticketing people crossing between unprotected intersections as well. That doesn't really make people that much safer.

[E]xamination shows that officers routinely write tickets for people crossing the street in places that are not in between intersections with traffic lights. In short, people are being punished for failing to avail themselves of safety features that aren’t readily accessible.

The official reaction to ProPublica's report has been worse than a shrug. It's been genuine indifference to the problems it causes people ticketed for non-violations of the law. Most law enforcement agencies said nothing more than recipients were welcome to challenge the bogus tickets in court. But people always could, so it's not like the agencies are making some sort of concession, much less offering apologies or promises to improve. The "fight it in court" proposal is a non-starter, since it's likely wages lost due to a day in court will far outweigh the face value of the ticket they never should have received. The potential savings of $55-77 just isn't worth it for most people, so the government will continue to collect on bogus tickets simply because it's hit a sweet spot in pricing.

Then there's the reaction of this agency, which openly admits pedestrian stops aren't about pedestrian safety or even actual violations of the law.

In Jacksonville, the sheriff’s office said it also used pedestrian tickets as a way to stop and question people suspected of criminal activity. The tickets, the officials said, gave officers probable cause to do so.

Except that an un-violated law isn't really "probable cause." Unfortunately, courts are often willing to grant officers the benefit of a doubt when it comes to the wording of the laws they enforce. They won't extend this courtesy to citizens, but officers stand a fair chance of keeping evidence in play even if the evidence was derived from a bullshit pedestrian stop. Given that reality, there's zero incentive for law enforcement agencies to improve officers' knowledge of the laws they're enforcing. In fact, the steady drip of $55-77 fees is the only incentive in play, and it's skewed completely towards issuing as many tickets as possible for perceived violations.

And that brings us to another troubling finding: it appears pedestrian tickets are just another way for police officers to (further) hassle certain citizens.

In Hillsborough, blacks make up 18 percent of the population, but received 43 percent of the bad tickets, according to our data analysis. In Orange County, where 23 percent of the population is black, blacks were issued 40 percent of the bad tickets. In Miami-Dade, black residents are 16 percent of the population, but received 29 percent of the flawed tickets. And in Broward, 61 percent of the bad tickets went to blacks, who make up just 30 percent of population.

Pressure is going to have to come from above if anything is going to change. None of the law enforcement agencies offering comments or statements made any pledge to actually start enforcing the law as written. One stated pedestrian tickets had almost nothing to do with pedestrian traffic violations. And one agency disagreed with the findings, but refused to state why it refused to believe ticket stats it had generated itself.

This is the attitude of law enforcement agencies when confronted with their ignorance of the law. They simply do not care. Keep that in mind the next time someone says something about most cops being good people, etc. Those at the top -- or at least those given the power to speak for law enforcement agencies -- are not good people. If they're leading by example, their departments are rotten to the core.

French President Emmanuel Macron was held up by some in the tech industry as a moderate who "got technology" leading up to his election. And yet, every time he seems to weigh in on tech related issues, it's with an absolutely terrible take on it. He wanted to mandate encryption backdoors and demand internet censorship of "radicals" online who post "inflammatory content." And now he's expanding that position and saying he wants to ban "fake news" during election season.

In his new year’s speech to journalists at the &‌Eacute;lys&‌eacute;e palace, Macron said he would shortly present the new law in order to fight the spread of fake news, which he said threatened liberal democracies.

New legislation for websites would include more transparency about sponsored content. Under the new law, websites would have to say who is financing them and the amount of money for sponsored content would be capped.

For fake news published during election seasons, an emergency legal action could allow authorities to remove that content or even block the website, Macron said. “If we want to protect liberal democracies, we must be strong and have clear rules,” he added.

The transparency idea isn't such a bad one (though the details would matter quite a bit), but it's unclear why the amount of money for sponsored content should be capped if it's clearly labeled and disclosed. But the really troubling part is that last one, allowing for "emergency legal action" to remove content. It may not be surprising that Macron is saying this about fake news -- since there were reports of a burst of fake new campaigns that tried to influence the French electorate to vote against Macron in the election.

But, as we've discussed many, many times -- the idea of government-mandated censorship, even if for the idea of stopping "fake news" is a terrible idea. It will be abused and abused badly. Remember, while the term "fake news" was first popularized by people who were upset about Donald Trump's election, he's now co-opted the term and uses it to argue that any media report that makes him look bad is "fake news." Imagine what a Trump or a French Trump-like figure would do with this kind of power?

A big part of the problem, obviously, is that "fake news" means different things to different people, and whoever has the power to order such content taken down will have plenty of opportunities to abuse that power -- such as to take down news that is merely unflattering to those in power. Or, even on a more subtle level, what if an unflattering story has a few small errors or misrepresentations. Claim "fake news" and make it disappear. This eagerness of so many to immediately leap to "censor it!" as the only possible response to propaganda is highly troubling -- and most certainly goes against the French ideals of freedom.

The implications of YouTube's ContentID system in an era of user-generated content can sometimes be quite muddy. It is widely known that ContentID is open to abuse, and that it is indeed abused on the regular. However, too many stories about that abuse play far in the margins of what the average person could look at and recognize as a very real problem.

This is not one of those stories.

Instead, the story of how one music professor's upload to YouTube of 10 hours of pure white noise was flagged five times for copyright infringement (FIVE TIMES!) operates as though someone somewhere is trying to bring a reductio ad absurdum argument into physicality.

That’s what’s happened to Australia-based music technologist Sebastian Tomczak, who uploaded a completely non-infringing work to YouTube and now faces five separate copyright complaints. One of Tomczak videos was a masterpiece entitled “10 Hours of Low Level White Noise” which features – wait for it – ten hours of low-level white noise.

“The white noise video was part of a number of videos I put online at the time. I was interested in listening to continuous sounds of various types, and how our perception of these kinds of sounds and our attention changes over longer periods – e.g. distracted, focused, sleeping, waking, working etc,” Tomczak says.

I could embed the video, which you can find on YouTube here, but I won't bother because the video is exactly as advertised: ten straight hours of white noise. Tomczak composed this white noise himself, in all of its beautifully non-creative glory, making the copyright claims all the more absurd. Remember, copyright only applies to new creative works. White noise would not qualify. Now, the video is still available despite the copyright claims because the four different entities filing these five complaints against it -- one, incredibly, filed twice for two different "compositions"-- chose to simply monetize Tomczak's video instead of having it taken down.

As seen from the image below, posted by Tomczak to his Twitter account, the five complaints came from four copyright holders, with one feeling the need to file two separate complaints while citing two different works.

As you will see, several of the complaints came from representatives of folks creating white noise compositions as sleep therapy or for other therapeutic effect. This, it should hardly need to be noted, does not somehow make Tomczak's independent composition that is equally devoid of creative output somehow infringing. White noise is white noise for a reason, after all. This isn't even a case of what to do about copyright in the event of independent creation of the same creative works. Judge Learned Hand's famous line on independent creation notes: "[I]f by some magic a man who had never known it were to compose anew Keats's 'Ode on a Grecian Urn,' he would be an 'author,' and if he copyrighted it, others might not copy that poem, though they might of course copy Keats's." But white noise is no "Ode on a Grecian Urn." There simply is no copyright here at all.

Still, the story is immensely useful in demonstrating just how vulnerable to abuse ContentID and copyright claiming systems can be on the internet. The original claim against this video dates back several years, which means that for some time others have been profiting from Tomczak's white noise, with nothing in the way of human intervention on YouTube's end that would take one look at this whole thing and proclaim the claims ridiculous. In this case, this all happened to someone, Tomczak, who seems to largely not care about the claims beyond being mildly amused by them.

Tomczak says that to him, automated copyright claims are largely an annoyance and if he was making enough money from YouTube, the system would be detrimental in the long run. He feels it’s something that YouTube should adjust, to ensure that false claims aren’t filed against uploads like his.

But that lax attitude doesn't change the absurdity of a reality in which ten hours of white noise can be flagged by four different outsiders as infringing, all the while the copyright industries scream that Google and YouTube aren't doing enough to clamp down on copyright infringement.

As we've been trying to help people understand, the FCC's repeal of net neutrality goes well beyond just killing net neutrality. The agency's "Restoring Internet Freedom" order not only guts FCC authority over broadband providers, but attempts to shovel any remaining oversight to the FTC. An FTC whose own authority over ISPs is already very limited, and which could be eroded almost completely if AT&T wins an ongoing court battle against the agency (this fact is conveniently forgotten by the small minority of folks still barking support for this historically-unpopular plan).

The goal is to eliminate nearly all meaningful federal oversight of uncompetitive telecom duopolies. But both Verizon and AT&T also successfully lobbied the FCC to include language banning states from trying to protect consumers from monopoly market abuses, whether they take the form of net neutrality violations, misleading pricing, hidden fees, or a rotating crop of privacy violations.

But the incumbent ISP stranglehold over state legislatures is so severe, this tends to be an uphill battle. Case in point: California recently tried to pass a new, EFF-approved privacy law in the wake of the GOP assault on FCC rules, only to have it scuttled by ISP lobbyists, who convinced state lawmakers that the proposal would somehow "increase popups" and "aid extremists." In reality the proposal was relatively modest, mirroring the deceased FCC proposal requiring ISPs disclose what data is being collected and sold (and to whom), while requiring they provide working opt out tools.

California's back again to try the same thing with net neutrality.

Unfortunately right now the proposal by California state Senator Scott Weiner is little more than a placeholder (pdf), but it tries to detail how California will tackle ISPs that violate net neutrality. Since the FCC repeal "pre-empts" states from passing their own net neutrality protections, states like Washington and New York have instead looked toward punishing bad actors like Comcast in other ways. Like restricting access to utility poles, rights of way, or government contracts to companies that repeatedly engage in anti-competitive, anti-consumer behavior. From the proposal:

"Under existing law, the Public Utilities Commission has regulatory authority over public utilities, including telephone corporations. Pursuant to its existing authority, the commission supervises administration of the state's telecommunications universal service programs. The Digital Infrastructure and Video Competition Act of 2006 establishes a procedure for the issuance of state franchises for the provision of video service, defined to include cable service and open-video systems, administered by these commissions.

The bill would state the intent of the Legislature to enact legislation to effectuate net neutrality in California utilizing the state's regulatory powers and to prevent Internet service providers from engaging in practices inconsistent with net neutrality...

There's of course several potential pitfalls here. One, the real issues will arise when California begins trying to define what net neutrality is. As we saw on the federal level in 2010 and 2015, lobbyists are immeasurably successful at using the complex technical nature of net neutrality to their advantage, convincing Luddite lawmakers to include so many loopholes as to make the rules useless. ISP lobbyists will likely work overtime to either water down the bill's language to the point of absurdity, misrepresent what the bill does (as they did with privacy), or bombard the state with lawsuits (likely all three).

And that's of course California. There's countless states where companies like AT&T and Comcast quite literally own state legislatures and most telecom regulators (Tennessee comes quickly to mind). States where similar laws will never be passed or enforced, creating huge oversight gaps for companies with thirty-years of documented anti-competitive history.

That's why, again, the best path forward to protecting net neutrality remains in hoping the courts get it right, and reverse the FCC's repeal for being "arbitrary and capricious," ignoring the public welfare, and turning a blind eye to shady comment period fraud. Not that states shouldn't try to protect consumers, but without rooting out state-level telecom influence and corruption first, passing meaningful state-level net neutrality protections -- then seeing consistent enforcement -- remains a long shot.

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The book Innovation and Its Discontents, by Adam Jaffe and Josh Lerner, was first published in 2004. We've cited the book frequently around here, as it did a bang up job describing structural problems with our patent system (and the judicial review of patents). There were a few big points that it made about why our patent system was so fucked up, and a big one was the incentive structure that heavily incentivized approving patents rather than rejecting them.

Specifically, there were two big ideas mentioned in the book about the US Patent & Trademark Office: (1) that because Congress forced the USPTO to fund itself from fees, it had the direct financial incentive to encourage more patent applications, and a good way to do that is to approve a lot more patents and (2) individual examiners were rated and reviewed based on productivity scores on how many patent applications they completed -- and it is much faster and less time consuming to approve a patent, rather than reject one. That's because once you approve a patent it's completed and gone from your desk (and into the productivity metrics as "completed"). But, if you "reject" a patent, it's not done. Even though the USPTO issues what it calls "Final Rejections" there's nothing final about it. The patent applicant can keep going back to the well over and over again, making minor tweaks on the application, requiring the examiner to go through it again. And each time they do, that hurts their productivity ratings. As an additional "bonus" -- the USPTO actually makes significantly more money when it grants a patent, because in addition to application fees, there are also issuance fees and renewal fees.

In the years after that book came out, the USPTO actually seemed to pay attention. It changed how it measured examiners' work and, magically, fewer patents were approved. For a bit. When President Obama appointed David Kappos to head the Patent Office, he decided that the number one problem that the Patent Office had was its huge backlog of patent applications. And, there's no denying that was a problem -- but it was a problem the USPTO created itself by spending the previous dozen years or so agreeing to issue patents on all sorts of crazy things, leading to more applications and more filers hoping to get their own golden patent trolling lottery ticket. So, it was little surprise when soon after Kappos took over, the USPTO started approving patents much more quickly, and a study from 2013 found that (surprise, surprise) it did so by drastically lowering the standards for approving patents.

Now there's a new study with even more empirical evidence showing how the Patent Office's entire structure is designed to incentivize the approval of crap patents (first highlighted by Tim Lee over at Ars Technica). The paper is by professors Michael Frakes and Melissa Wasserman, and they used FOIA (yay!) to get data on millions of patent applications between 1983 and 2010. The key point with that date range is that Congress only switch the USPTO over to funding itself off of fees in 1991 -- so the researchers could look at before and after data. It also allowed them to look at different cross sections within the data.

So, for example, the researchers looked at whether or not there was evidence that the USPTO approved more patent applications when there was a big backlog. The answer: hell yes!

Specifically, we compared the Agency’s patent grant rate across different groups of applicants based on the tendency of their associated technologies to file repeat applications; importantly, we performed this across technology comparison for two groups—defined by their average tendency to file repeat applications—before and after periods of budgetary shortfall and increases in application backlog. Our findings suggested that when the Patent Office begins to face mounting backlogs, it appears to act on its incentive to grant patents at higher rates for technologies that are associated with higher rates of repeat application.11 In figure 1, we replicate a figure from Frakes and Wasserman (2015), demonstrating that the Patent Office indeed began to grant at differentially higher rates for high repeat-filing technologies during the mid-1990s, a moment in time when the Patent Office’s application backlog began to increase considerably year-by-year. Again, this analysis is alarming because it suggests that factors other than the underlying quality of applications are affecting the Patent Office’s decision to allow patents.

Then there's a separate question of whether or not the USPTO has a higher approval rate for "profit-maximizing" patents. That is: not all patent fees are the same. Smaller entities get to pay reduced fees. Big companies pay full freight. If the USPTO is being incentivized by fees... then it's likely to approve big company patents faster. And... that's what happened. The study also looked at whether or not the USPTO more readily approved patents in categories where there were higher renewal rates -- meaning a much higher likelihood of generating future fees from renewals. Take a wild guess what they found in both of those studies?

As theory predicts, the Patent Office does indeed grant patents at notably higher rates to large entities and applicants from high renewal rate technologies when it finds itself in a position of insufficient fee revenue.9 More broadly, the parameters of its fee schedule appear to affect the way in which the Patent Office applies the legal patentability requirements. This is concerning, given that the granting decision should be based solely on whether the application meets the legal patentability standards. If the fee structure were to encourage more patent grants overall (or more grants during times of budgetary shortfalls), the result could be the issuance of patents lacking legal validity, potentially leading to substantial social harms.

Of course, patent system (and patent troll) supporters will cry foul at this for all the usual reasons -- insisting that this is all a conspiracy to take away their patents. But that's ridiculous. Everyone should agree that we're all better off if the Patent Office is not approving low quality patents. I guess everyone... except those with low quality patents. Basically if people are complaining about the results of this study, there's a half decent chance that it's because they hold crap patents.

The report suggests some ways to try to fix these incentives -- or at least to minimize the social cost of them. One is to stop making the PTO so reliant on fees. You can understand why it was appealing for Congress to make the PTO funded by fees in the first place: not having to allocate taxpayer money to an agency seems like a good thing. But it's important to pay attention to what kinds of incentives that can create -- and how it could create serious problems, as it has here. The report suggests raising patent filing fees -- such that they cover the costs of the actual examination, thus making it less likely for there to be budgetary shortfalls that create these warped incentives.

Because the actual fees paid to the Patent Office for the examination of a patent application are a fraction of the overall cost of securing a patent (which includes attorney fees), there is reason to believe that even a two-fold or three-fold increase in examination fees will not substantially impede access to the U.S. patent system. As a bonus, increasing examination fees will likely also result in raising the quality of patent applications filed with the Patent Office, as applicants become more judicious in selecting those inventions for which they choose to pursue patent rights.

While that increase in filing fee may feel unfair to some, they also propose doing away with the issuance fee -- so there won't be additional expense for actually getting the patent upfront (there are still renewal fees, but that's much further down the road). As for renewal fees:

Instead of eliminating renewal fees, we recommend that Congress decouple the renewal fee income from the revenue stream that the Patent Office can immediately access for funding. While this decoupling goal could be achieved in various ways, we propose the most straightforward approach: Congress would abolish the requirement that the Agency’s aggregate fee income not exceed its operational costs. Renewal fees would then be allocated to a separate fund, similar to the Patent and Trademark Fee Reserve Fund, and earmarked for Patent Office use only. This fund would then be used to provide rebates to small and micro-entities. As a replacement for the guaranteed fee discount for any given small- or micro-entity application, the Agency’s excess renewal fee income would be used to subsidize the small- and micro-entity examination fee.

Perhaps an even more important modification -- and one that's been obvious for many, many years -- is to actually have final rejections of bad patent applications, so people and companies can't just keep refiling over and over again without end. As the paper notes, it's not at all clear what societal benefits allowing repeat filings creates. It overburdens the system, creates incentives for bad patents to get approved, and provides no benefit to anyone other than the entity applying for bad patents. The specific proposal in the paper is that filers can get just one chance to refile the application.

It's good to see more research being done on all of this -- and to see more empirical evidence. What's troubling is that almost all of this was clearly shown more than a dozen years ago, and Congress still hasn't done a damn thing to fix any of it.

As more than a few folks have noted, many opponents of net neutrality (from FCC boss Ajit Pai to Mark Cuban) are following blind ideology. Many of them quite honestly believe that no regulation can ever be good, and that government is absolutely never capable of doing the right thing. That kind of simplicity may feel good as you navigate a complicated world, but it's intellectually lazy. As a result, the decision to use net neutrality rules as an imperfect but necessary stopgap (until we can reduce corruption and drive more competition into the sector) simply befuddles them.

Of course this kind of blind ideology is particularly handy when you don't actually know how modern broadband markets or net neutrality even work, but your gut just tells you why the whole nefarious affair is simply bad. That's why you'll see folks like Ted Cruz consistently doubling down on bizarre, misleading claims based on repeatedly debunked falsehoods. Needless to say, this sort of lazy thinking is not particularly productive. Especially when you're a member of the same government purportedly tasked with analyzing real-world data, listening to constituent concerns, and actively tasked with making things better.

Case in point: one sixteen-year-old Maine high school student recently wrote to Maine Governor Paul LePage, clearly worried about the impact the broadband industry's attack on net neutrality will have on her ability to freely access information online. Camden Hills Regional High School sophomore Hope Osgood actually took the time to write her governor, expressing concern about how the repeal could pose problems for free speech, competition, and the health of information exchange:

"The internet is the easiest way to access anything. News, information, etc. Companies being able to put restrictions on internet usage isn’t ideal! People will be left in the dark about some things. All my school work is internet-based, but what happens if I can’t reach what I need to? What about my lessons in school?"

Osgood said she is concerned that big companies "might have more control over everything. If you wanted to go to a certain website, it might be slowed down. You might have to pay to access that, or it might be completely blocked off what you can see. They could filter news, media, or things they don’t agree with. I don’t think that should be able to happen. Everybody should be able to get information."

Le Page's response to her concerns? To scribble a response in the margins of her letter telling the kid to "pick up a book and read!":

His response not only is insulting, but makes no coherent sense. How would reading a book solve letting telecom monopolies run roughshod over competitors and the health of the internet? It wouldn't. Like so many others, LePage's disdain for net neutrality is being fueled entirely by blind ideology, and much like Donald Trump, the Governor probably couldn't tell you what net neutrality even is in one-on-one conversation. Needless to say, Osgood and her family didn't walk away charmed from her first run in with civil engagement:

"Osgood showed the letter to her grandfather, Rick Osgood, a LePage supporter who didn’t like the tone of the governor’s response. Rick Osgood has voted for LePage twice and supports much of what the governor is doing in Maine, but he called LePage’s message “just a snide remark.” “I think it’s mighty rude,” he said."

Again, a lot of the folks that aided and supported this latest attack on net neutrality don't really understand the backlash that's headed their direction, especially among younger voters. In their heads, they've heroically fought back a "government takeover of the internet" because they're letting blind ideology drive the car. In reality, they've made a stupid, unpopular, economically unsupportable decision that's going to impact voting decisions for the next decade. Watching many of them realize this when election time rolls around should provide at least a modicum of entertainment value in the wake of one of the worst tech policy decisions in a generation.

Free speech isn't free, people trying to stifle your free speech will often remind you. It's dumb enough when it's just your fellow man. It's way worse when it's your elected representative. (via PrawfsBlog)

An Indiana lawmaker is filing legislation that would require the Indianapolis Colts to offer fans refunds if Colts players kneel during the national anthem at home games.

The lawmaker is Milo P. Smith, a lawmaker who has pushed forward legislation opposed by his own offspring to satisfy his base. This appears to be more of the same. Smith's anti-kneeling bill not only poses Constitutional problems, but it completely misconstrues the reasons NFL players kneel.

Rep. Milo Smith, R-Columbus, said his bill would allow fans who feel disrespected by the kneeling to ask for a refund during the first quarter.

"To me when they take a knee during the national anthem, it’s not respecting the national anthem or our country," Smith said. "Our government isn’t perfect, but it's still the best country in the world and I think we need to be respectful of it."

Kneeling doesn't "disrespect" paying customers. If they want to feel offended by it, that's their prerogative, but it's not directed towards them. And it has nothing to do with not respecting the national anthem, the United States, the troops fighting for these players' freedom to express themselves, or anything else related to patriotic jingoism. It's a protest of ongoing oppression of African Americans in the United States. That's what has been diluted by attacks on this particular form of protest. Not only have people like Smith managed to turn the protest into an anti-American statement, they've shifted the players' goalposts away from the law enforcement target to an assault the flag, the troops, and every other symbol of unquestioning patriotism.

Smith is dumb and his proposed law is dumber. Even if it manages to survive a vote on its highly-dubious merits, it certainly won't survive a Constitutional challenge. As Howard Wasserman of Prawfsblog points out, there are numerous ways the law could be construed as government infringement on free speech rights.

[T]he law infringes the Colts' First Amendment rights by sanctioning them (or setting them up for sanction) if they do not prohibit their players from kneeling. If we understand the team as exercising its First Amendment rights when it decides what its players can do, the law abridges that right and for reasons of disagreement with the team's speech in allowing its players to kneel.

A law also can violate a person's rights even if it does not prohibit some actions, by empowering or obligating private persons to take certain steps that harm that person... The same logic is at work with this statute--the Colts are essentially being fined for not stopping the players from kneeling and so will prohibit kneeling to avoid the fine.

In this case the fine comes in the form of a ticket price refund, provided the offended person leaves the game before the end of the first quarter. So, it will basically appeal to those with the same mentality as our Vice President, who apparently attended an Indianapolis Colts game solely for the purpose of being offended. His walkout and attendant statement of offense was apparently directly ordered by President Trump. The demands for refunds by "offended" attendees will serve the same virtue-signalling purpose VP Pence's leaving-in-a-huff did: to briefly ascend a shitty bully pulpit to preach to the converted. (Facebook videos of jersey-burnings optional.)

This bill has zero chance of going anywhere because it's so obviously targeted at silencing protected speech. Considering Smith has done nothing more than talk about this bill so far (it has not been submitted to the legislature at this point), it would appear Smith has plenty of opportunities to run his mouth about speech he doesn't agree with (a.k.a.: more speech). This alone renders his First Amendment-harming legislation superfluous. The Constitution will render the law illegal, should Smith ever put his taxpayers' money where his offended motormouth is.