Well, GOG is taking a moment to remind everyone of that fact while celebrating its 10 year anniversary.

The GOG.COM story began in Poland, 1994 – a time and place where bootlegging reigned supreme and legal games were a luxury that few could afford. These were the early days of CD PROJEKT – back then specializing in local retail distribution, but the job wasn't easy. After all, how do you compete with the grey market?

Our answer was to offer value that gamers were already used to and then some: beloved games in big beautiful boxes packed with goodies, professional localization, and prices that are simply reasonable. And it worked!

It did indeed. In fact, the story of GOG's anniversary is the story of one platform successfully competing with free, with a much bigger competitor, and having to drag wary publishers that might be scared off of the anti-DRM stance along for the ride... for ten years. For a decade now, GOG has built a business that started and is still largely centered around retro-games that are easily pirated in the video game industry of all places, where customers are far more likely to know the methods for piracy than in other industries. And, yet, here they are, retelling how it filled the market for retro-games by assuming many people actually still wanted developers to be rewarded for great game-making.

Good Old Games launches in open beta as a legal way to support classics at affordable prices. No longer abandoned, all games would come with tech support and sorcery to get them running on modern PCs. Every game stuffed with goodies and bonus content that tickles our inner collectors. Everything would be DRM-free – it's only fair after all, and it captures that feeling of ownership on your digital shelf.

And it was both that catering to the public demand for valid and working versions of these games, and of course the stripping out of frustrating DRM, that built up GOG's loyal following. It was merely a few years later when GOG was the platform for several major title day 1 releases, all of which had to follow the anti-DRM "ideology", as GOG puts it. That there is an honest to God DRM-free option is the full response to any publisher that insists DRM is must-have.

For many years, we've talked about the unfortunate decision by a Newt Gingrich-led Congress back in the mid-90s to dismantle the Office of Technology Assessment (or OTA). This was the organization that was a non-partisan, careful think tank focused on providing useful technology briefings to anyone in Congress who needed it. And yet, just as technology was becoming central to our every day lives, Congress defunded it (technically, the office still exists on the books, but it has no funding and no staff). Over the years there have been many calls to bring OTA back, and every so often someone in Congress floats a bill... which always gets shot down (the latest was just a few months ago).

The goal of the Future Congress coalition is to try to convince Congress to fix this -- for its own good. For many, many, many years now, we've highlighted how every time there's a hearing related to issues regarding technology, nearly all of our elected officials come off looking totally clueless to a degree that is outright embarrassing. They could easily fix this -- in a way that will both stop making them look clueless in front of the world and likely lead to better policy outcomes. Hopefully, they realize this.

I will note that last month there were some baby steps towards this, with Congress putting some language into an appropriations bill that fund a study of reviving the OTA while also moving to let the GAO take on some of the work that OTA used to do. It's unclear if this will actually survive or do very much, and Congress should be willing to step up and do much more. Hopefully, this Future Congress coalition will help make it clear to Congress why it should stop being so ignorant on technology -- especially when it has the means to better educate itself.

Yes, the Spanish government gets to decide what's funny in Spain. It also apparently gets to decide how offended followers of certain faiths will be when dead/imaginary religious figures are disparaged on social media. Thanks to Spain's insane laws, a complaint from a religious group is enough to get someone arrested.

That someone is an actor and activist who made the mistake of saying nasty things about Jesus and his mom.

A Madrid judge has decided to press ahead with a court case involving Spanish actor and activist Willy Toledo, in which he is accused of offending religious sentiments by insulting God and the Virgin Mary in messages posted on Facebook.

Toledo was arrested on September 13 on orders from the judge, after he failed to appear in court on two prior occasions to answer questions about the case in a preliminary probe. After spending a night in the cells, and then appearing before the judge the next morning, he was released.

Technically, Toledo's arrest is due to his failure to appear in court. But that "failure" was due to Toledo's belief he had committed no crime. A legal complaint by the Spanish Association of Christian Lawyers says otherwise. This complaint was ignored by Toledo, resulting in a failure-to-appear arrest.

Here's what prompted the Christian Lawyers into action: Toledo's response to the arrest of three women for staging their own religious procession featuring a giant model of female genitalia. (Language NSFW)

In his comments, Toledo said: “I shit on God and have enough shit left over to shit on the dogma of the holiness and virginity of the Virgin Mary. This country is unbearably shameful. I’m disgusted. Go fuck yourselves. Long live the Insubordinate Pussy.”

The Christian law group said this comment "offended religious sentiment." Instead of being told to GTFO, the court decided to move forward with the case. Unfortunately for citizens of Spain, this insane-looking legal charge is actually legitimate.

Article 525 of the Spanish Criminal Code sets out monetary fines for those who offend the feelings of the members of a religious confession by “publicly disparaging their dogmas, beliefs, rites or ceremonies.”

Having finally faced a judge (against his will), Toledo is now facing the possibility of being fined for annoying an association of lawyers and disparaging their chosen religious beliefs. The judge says this comment is "potentially offensive," which seems to be enough to follow through on prosecution. It's also "devoid of any critical sense," which means judges in Spain know "legitimate" criticism when they see it.

Toledo won't have to spend any more time in jail (provided he shows up for future court dates…) but he'll be out the money spent to defend himself and possibly a whole lot more if the court decides figuratively shitting on religious figures is a criminal violation.

The Christian lawyers believe this is the most righteous outcome. In its statement to El Pais, a spokesperson said Toledo has repeatedly delivered "deliberate and intense attacks" against a concept valued by everyone in this particular law association. How that makes it a crime worth prosecuting is beyond me, but if you've got a bunch of terrible laws on the book, they will be used by terrible people to harm their critics.

And now, Greenspan informs me that someone is trying to get his original tweet -- which alerted me to this abuse of the GDPR to delete public documents -- disappeared from the internet as well. On Wednesday morning Greenspan discovered that both his PlainSite Twitter account and his personal Twitter account were "limited" due to reports. It's unclear why his personal account was limited, but Twitter told him that his original tweet about Bujaldon violated its rules on "posting personal information."

It is difficult to see how a tweet that simply reads "French scam artist Michael Francois Bujaldon is using the GDPR to attempt to remove traces of his United States District Court case from the internet. He has already succeeded in compelling PacerMonitor to remove his case. We have 24 hours to respond" (and then links to the PlainSite docket) could possibly violate any Twitter rules, but the company told him he needed to delete the tweet in question:

Once again, we're in a situation where if you hand people tools to delete content they dislike -- whether it's a DMCA takedown process, a GDPR "right to be forgotten" or a private platform's "report abuse" button -- some percentage of people are going to abuse that. And, as we've discussed many times, with the private platform decision making process involving overworked, underpaid workers who have to make determinations on each "report" with about 5 seconds to consider the report, many, many mistakes are going to be made. This is yet another one, and is yet another example of why we should be careful about giving people even more tools for deleting content.

A French police officer has been charged and arrested last week for selling confidential data on the dark web in exchange for Bitcoin.

[...]

French authorities also say the officer advertised a service to track the location of mobile devices based on a supplied phone number. He advertised the system as a way to track spouses or members of competing criminal gangs. Investigators believe Haurus was using the French police resources designed with the intention to track criminals for this service.

He also advertised a service that told buyers if they were tracked by French police and what information officers had on them.

The discovery of the officer's misconduct came to light after French police shut down a dark web market. That there was a cop selling cop stuff to criminals on the dark web is inevitable. If it wasn't this investigation, any of the dozens of others happening around the world would have uncovered a law enforcement officer doing bad things. Two of the federal agents involved in the Silk Road investigation ended up being charged with money laundering and wire fraud after they stole Bitcoin and issued fake subpoenas to further their own criminal ends.

Again, it's a people problem -- one that's present anywhere people are given power and access not present in most jobs. The problem is government agencies, in particular, tend not to hold their own employees accountable and work hard to thwart their oversight. The more brazen examples of government malfeasance are enabled by the dozens of smaller infractions that go unpunished until they're the subject of a lawsuit or government investigation.

More to the point, this is exactly why no government agency -- not to mention the private companies involved -- should be allowed to utilize encryption backdoors, as the EFF's Director of Cybersecurity, Eva Galperin, pointed out on Twitter. It's not just about the hundreds of malicious hackers who will see an inviting, new attack vector. It's that no one -- public or private sector -- can be completely trusted to never expose or misuse these avenues of access. And since that's a fact of life, sometimes the best solution is to remove the temptation.

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And it's not good.

Corynne McSherry, EFF's legal director has put together an excellent list of five lessons on content moderation from the copyright wars that should be required reading for anyone looking to upset the apple cart of CDA 230. Incredibly, as someone who lives and breathes this stuff every day, it's quite incredible how frequently we hear from people who haven't looked at what happened with copyright, who seem to think that the DMCA's regime is a perfect example of what we should replace CDA 230 with. But... that's only because they have no idea what a complete and total clusterfuck the copyright/DMCA world has been and remains. Let's dig into the lessons:

1. Mistakes will be made—lots of them

The DMCA’s takedown system offers huge incentives to service providers that take down content when they get a notice of infringement. Given the incentives of the DMCA safe harbors, service providers will usually respond to a DMCA takedown notice by quickly removing the challenged content. Thus, by simply sending an email or filling out a web form, a copyright owner (or, for that matter, anyone who wishes to remove speech for whatever reason) can take content offline.

Many takedowns target clearly infringing content. But there is ample evidence that rightsholders and others abuse this power on a regular basis—either deliberately or because they have not bothered to learn enough about copyright law to determine whether the content they object to is unlawful. At EFF, we’ve been documenting improper takedowns for many years, and highlight particularly egregious ones in our Takedown Hall of Shame. 

As we have already seen, content moderation practices are also rife with errors.

There are all different kinds of "mistakes" embedded here as well. One is just the truly accidental mistakes, but it happens quite frequently when you're dealing with billions of pieces of content. Even if those mistakes only happen 0.01% of the time, you still end up with a ton of content taken down that should remain up. That's a problem.

But the larger issue, as Corynne points out, is abuse. If you give someone a tool to take down content, guess what they do with it? They take down content with it. They often don't care -- even a little bit -- that they're using the DMCA for non-copyright purposes. They just want the content to come down for whatever reasons, and the DMCA provides the tool. Imagine that, but on steroids, in other contexts.

2. Robots aren’t the answer

Rightsholders and platforms looking to police infringement at scale often place their hopes in automated processes. Unfortunately, such processes regularly backfire.

For example, YouTube’s Content ID system works by having people upload their content into a database maintained by YouTube. New uploads are compared to what’s in the database and when the algorithm detects a match, copyright holders are informed. They can then make a claim, forcing it to be taken down, or they can simply opt to make money from ads put on the video.

But the system fails regularly. In 2015, for example, Sebastien Tomczak uploaded a ten-hour video of white noise. A few years later, as a result of YouTube’s Content ID system, a series of copyright claims were made against Tomczak’s video. Five different claims were filed on sound that Tomczak created himself. Although the claimants didn’t force Tomczak’s video to be taken down they all opted to monetize it instead. In other words, ads on the ten-hour video could generate revenue for those claiming copyright on the static.

Again, this has been an incredibly popular claim -- most frequently from people who are totally ignorant both of how technology works (the "well, you nerds can nerd harder" kind of approach) to those who are totally ignorant of what a complete clusterfuck existing solutions have been. ContentID is absolutely terrible and has a terrible error rate and it is, by far, the best solution out there.

And that's just in the narrow category of copyright filtering. If you expect algorithms to be able to detect much more amorphous concepts like bullying, terrorist content, hate speech and more... you're asking for much higher error rates... and a lot of unnecessary censorship.

3. Platforms must invest in transparency and robust, rapid, appeals processes

With the above in mind, every proposal and process for takedown should include a corollary plan for restoration. Here, too, copyright law and practice can be instructive. The DMCA has a counternotice provision, which allows a user who has been improperly accused of infringement to challenge the takedown and, if the sender doesn’t go to court, the platform can restore to content without fear of liability. But the counternotice process is pretty flawed: it can be intimidating and confusing, it does little good where the content in question will be stale in two weeks, and platforms are often even slower to restore challenge material. One additional problem with counter-notices, particularly in the early days of the DMCA, was that users struggled to discover who was complaining, and the precise nature of the complaint. 

The number of requests, who is making them, and how absurd they can get has been highlighted in company transparency reports. Transparency reports can both highlight extreme instances of abuse—such as in Automattic’s Hall of Shame—or share aggregate numbers. The former is a reminder that there is no ceiling to how rightsholders can abuse the DMCA. The latter shows trends useful for policymaking. For example, Twitter’s latest report shows a 38 percent uptick in takedowns since the last report and that 154,106 accounts have been affected by takedown notices. It’s valuable data to have to evaluate the effect of the DMCA, data we also need to see what effects “community standards” would have.

Equally important is transparency about specific takedown demands, so users who are hit with those takedowns can understand who is complaining, about what. For example, a remix artist might include multiple clips in a single video, believing they are protected fair uses. Knowing the nature of the complaint can help her revisit her fair analysis, and decide whether to fight back.

Another point on this is that, incredibly, those who support greater content policing frequently are very much against great transparency. In the copyright space, the legacy companies have often hit back against transparency and complained about things like the Lumen Database and the fact that Google publishes details of takedown demands in its transparency reports -- with bogus claims about how such transparency only helps infringers. I fully expect that if we gut CDA 230, we'll see similarly silly arguments against transparency.

4. Abuse should lead to real consequences

Congress knew that Section 512’s powerful incentives could result in lawful material being censored from the Internet without prior judicial scrutiny. To inhibit abuse, Congress made sure that the DMCA included a series of checks and balances, including Section 512(f), which gives users the ability to hold rightsholders accountable if they send a DMCA notice in bad faith.

In practice, however, Section 512(f) has not done nearly enough to curb abuse. Part of the problem is that the Ninth Circuit Court of Appeals has suggested that the person whose speech was taken down must prove to a jury the subjective belief of the censor—a standard that will be all but impossible for most to meet, particularly if they lack the deep pockets necessary to litigate the question. As one federal judge noted, the Ninth Circuit’s “construction eviscerates § 512(f) and leaves it toothless against frivolous takedown notices.” For example, some rightsholders unreasonably believe that virtually all uses of copyrighted works must be licensed. If they are going to wield copyright law like a sword, they should at least be required to understand the weapon.

This gets back to the very first point. One of the reasons why the DMCA gets so widely abused any time anyone wants to take down anything is because there's basically zero penalty for fling a bogus report. There is merely the theoretical penalty found in 512(f) which the courts have effectively killed off in most (hopefully not all) cases. But, again, it's even worse than it seems. Even if there were a better version of 512(f) in place, how many people really want to go through the process of suing someone just because they took down their cat videos or whatever? In many cases, the risk is exceptionally low because even if there were a possible punishment, no one would even pursue it. So if we're going to set up a system that can be abused -- as any of these systems can be -- there should be at least some weight and substance behind dealing with abusive attempts to censor content.

5. Speech regulators will never be satisfied with voluntary efforts

Platforms may think that if they “voluntarily” embrace the role of speech police, governments and private groups will back off and they can escape regulation. As Professor Margot Kaminski observed in connection with the last major effort push through new copyright enforcement mechanisms, voluntary efforts never satisfy people speech censors:

Over the past two decades, the United States has established one of the harshest systems of copyright enforcement in the world. Our domestic copyright law has become broader (it covers more topics), deeper (it lasts for a longer time), and more severe (the punishments for infringement have been getting worse).

… We guarantee large monetary awards against infringers, with no showing of actual harm. We effectively require websites to cooperate with rights-holders to take down material, without requiring proof that it's infringing in court. And our criminal copyright law has such a low threshold that it criminalizes the behavior of most people online, instead of targeting infringement on a true commercial scale.

In addition, as noted, the large platforms adopted a number of mechanisms to make it easier for rightsholders to go after allegedly infringing activities. But none of these legal policing mechanisms have stopped major content holders from complaining, vociferously, that they need new ways to force Silicon Valley to be copyright police. Instead, so-called "voluntary efforts" end up serving as a basis for regulation. Witness, for example, the battle to require companies to adopt filtering technologies across the board in the EU, free speech concerns be damned.

Over and over we've tried to point this out to the platforms that have bent over backwards to please Hollywood. It's never, ever enough. Even when the platforms basically do exactly what was asked of them, those who wish to censor the networks always, always, always ask for more. That's exactly what will happen if we gut CDA 230.

Again, it's worrisome that the debates over changing intermediary liability rules don't seem to even acknowledge the vast amount of empirical evidence we have in the copyright context. And that's maddening, given that the copyright world shows just how broken the system can become.

At the same time, AT&T is now part of a coordinated effort between the telecom sector and the Trump administration to saddle Silicon Valley giants like Facebook and Google with additional regulation while demonizing them as out of control monsters. Why? As AT&T and Comcast push deeper into the online ad industry, they're looking for any advantage they can get against entrenched search and social media giants. And, given their political power, domination of the broadband last mile, and the government's apathy to both problems, those advantages run deep.

At the heart of this little stage play sits our national conversation about what new privacy laws might look like. Last week, the Senate Commerce Committee held a hearing consumer advocates weren't even invited to. Instead, companies with utterly terrible track records of privacy abuses were given starring roles in dictating just what said privacy legislation should look like. That included Facebook but also AT&T, which for weeks has been quick to claim on multiple fronts that it just really, really, loves the idea of comprehensive privacy protections for consumers:

AT&T has long supported comprehensive federal privacy legislation to protect consumers and give businesses clear and consistent guidelines on the collection and use of consumer data... AT&T wants to be a constructive voice in finding a real and durable solution.

Which is weird, because "constructive" isn't really the best word to explain AT&T's lobbying tactics on the privacy front lately. The company was a major player in efforts last year to obliterate modest FCC privacy guidelines for broadband providers before they could even take effect. Those rules largely just mandated that ISPs be transparent about what data is collected and who it's being sold to, while requiring opt in consent for particularly sensitive consumer data like your financial background. AT&T has played a pretty major role in lying to scuttle state-level protections as well.

Yet here's AT&T CEO Randall Stephenson, again this week proclaiming that his company is breathlessly dedicated to real privacy protections, while lamenting the fact that states are now trying to fill the void in the wake of federal apathy on this subject:

AT&T CEO Randall Stephenson on Tuesday made a pitch for Congress to "step up" and create "rules of the road" on consumer privacy that would apply to all companies across the country.

"We think one ranger. There ought to be one regulator for everybody," the exec said at The Atlantic Festival in Washington. Without that, Stephenson said states like California will step into the breach and create their own rules.

Speaking of the media, tech and communications industries, he said, "To handcuff those sectors with 50 different rules of the road across 50 different states and different regulators is a disaster for an uncertain business model."

That takes some serious stones. Again, AT&T just got done obliterating meaningful FCC privacy rules that didprecisely what Stephenson claims he was looking for, something you'd think any press outlet writing about this would mention. Like the ISP assault on net neutrality, the attack on the FCC's privacy rules (and overall authority) created an accountability vacuum states then rushed to fill. A bunch of fractured, state-level protections isn't ideal, but it was a problem directly caused by AT&T's own lobbying. That really shouldn't be forgotten.

It's understood that people have differing opinions on what real privacy rules should look like and whether we need them at all. But whatever your position, it shouldn't be hard to see that companies like AT&T are the very last folks we want having too much input on what these rules should look like. From actively modifying user packets to covertly track them around the internet to trying to charge consumers more money to protect their privacy, AT&T's the poster child for not really giving a damn about consumer privacy. And when efforts to pass even modest rules do arrive, AT&T lobbyists work to kill them.

That's because none of the giant companies being tasked with defining our potential looming privacy law (be it Facebook or AT&T) want a law that actually accomplishes much of anything aside from "putting the debate to bed" so they can get back to tracking you around the internet without much transparency or meaningful consent. Real rules would empower, inform, and educate consumers, who'd then opt out of huge swaths of data monetization efforts, costing ad-driven companies billions. They like to talk a lot about "compromise" and "building consensus," but these companies really only want one thing: a federal privacy law that looks good on paper, but has so many loopholes to be largely useless, outside of the goal of pre-empting any tougher, state-level privacy efforts.

In AT&T's case, if those laws happen to saddle Silicon Valley ad competitors with additional burdens AT&T and its subsidiary DirecTV may not have to face (after having just effectively convinced the FCC to blow itself up from within), so much the better.

Travelers entering New Zealand who refuse to disclose passwords for their digital devices during forced searches could face prosecution and fines of more than $3,000, a move that border officials said Tuesday made the country the first to impose such penalties.

“We’re not aware of any other country that has legislated for the potential of a penalty to be applied if people do not divulge their passwords,” said Terry Brown, a New Zealand Customs spokesman. Border officials, he said, believe the new fine is an “appropriate remedy” aimed at balancing individuals’ privacy and national security.

There's an interesting juxtaposition in the spokesman's comments, suggesting mandatory password divulgement -- something no other free world country is doing -- is striking the right balance between privacy and national security.

The law applies to incoming visitors and returning citizens. The fine kicks in when password demands are refused, which also likely means the seizure of locked devices indefinitely. Supposedly, unlocked devices are searched for local files only -- with phones put into airplane mode -- but that's still an incredibly invasive search predicated on nothing more than someone's arrival in New Zealand.

Government officials are justifying the compelled password production with bad examples and terrible analogies. The so-called "Privacy Commissioner" tried to equate cellphones and other digital devices potentially containing thousands of personal files and communications with something containing the few belongings someone takes with them while traveling. (via Boing Boing)

Privacy Commissioner John Edwards had some influence over the drafting of the legislation and said he was "pretty comfortable" with where the law stood.

"There's a good balance between ensuring that our borders are protected ... and [that people] are not subject to unreasonable search of their devices."

"You know when you come into the country that you can be asked to open your suitcase and that a Customs officer can look at everything in there."

Socks, underwear... 700 personal photos, a few thousand personal communications… yeah, it's all pretty much the same thing. This is like saying customs can demand your house keys and dig through your belongings simply because you traveled out of New Zealand and returned home.

The inadvertent hilarity comes from the Customs Minister, who is probably even less concerned about personal privacy than the Privacy Commissioner is.

Customs Minister Kris Faafoi said the power to search electronic devices was necessary.

"A lot of the organised crime groups are becoming a lot more sophisticated in the ways they're trying to get things across the border.

"And if we do think they're up to that kind of business, then getting intelligence from smartphones and computers can be useful for a prosecution."

There are plenty of ways to get digital "things" across the border without carrying them on your person in some sort of electronic "suitcase" you know customs officials are going to take from you as soon as you enter the country. This may help catch some dumb criminals, but it's not going to have much of an effect on the "sophisticated" organized crime groups.

What will happen is lots of people not connected to any criminal enterprise will have their devices seized and searched just because. The new fine will discourage visitors from refusing Customs' advances, allowing officials to paw through their digital goods just like they do their clothing. And all the government can offer in response is that the ends justifies the means.

A4AI's recent mobile broadband pricing update shows that Africans face the highest cost to connect to the internet -- just 1GB of mobile data costs the average user in Africa nearly 9% of their monthly income, while their counterparts in the Asia-Pacific region pay one-fifth of that price (around 1.5% of monthly income). Despite this already high cost to connect, we're seeing a worrying trend of governments across Africa imposing a variety of taxes on some of the most popular internet applications and services.

The article goes on to list the following examples.

Uganda

imposes a daily fee of UGX 200 ($0.05) to access social media sites and many common Internet-based messaging and voice applications, as well as a tax on mobile money transactions.

Zambia

has announced it will levy a 30 ngwee ($0.03) daily tax on social network use.

Tanzania

requires bloggers to pay a government license fee roughly equivalent to the average annual income for the country.

Kenya

aims to impose additional taxation on the Internet, with proposed levies on telecommunications and on mobile money transfers.

Benin

imposed a 5 CFCA ($0.01) per megabyte fee to access social media sites, messaging, and Voice-over-IP applications, causing a 250% increase in the price for 1GB of mobile data.

The article explains that the last of these was rescinded within days because of public pressure, while Kenya's tax is currently on hold thanks to a court order. Nonetheless, there is a clear tendency among some African governments to see the Internet as a handy new source of tax income. That's clearly a very short-sighted move. At a time when the digital world in Africa is advancing rapidly, with innovation hubs and startups appearing all over the continent, making it more expensive and thus harder for ordinary people to access the Internet threatens to throttle this growth. Whatever the short-term benefits from the moves listed above, countries imposing taxes and levies of whatever kind risk cutting their citizens off from the exciting digital future being forged elsewhere in Africa. As the A4AI post rightly says:

Africa, with the largest digital divide of any geographic region, has the greatest untapped potential with regards to improving affordable access and meaningful use of the internet. With affordable internet access, African economies can grow sustainably and inclusively.

Sadly, in certain African countries, that seems unlikely to happen.

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In documents filed with the U.S. District Court for the Eastern District of Pennsylvania today, city officials agreed to a set of reforms that will end the perverse financial incentives under which law enforcement keeps and uses forfeiture revenue, fundamentally reform procedures for seizing and forfeiting property, and establish a $3 million fund to compensate innocent people whose property was wrongly confiscated.

The city's program was infamous for things like seizing a house because one resident (not the owner) sold cops $40 worth of drugs. Another case featuring the IJ's legal assistance sought the return of another home seized after a $140 drug purchase. In the first instance, prosecutors dropped the case and returned the property after the litigation received national attention. In the latter, the state's Supreme Court found the seizure of the house unwarranted and unjustifiable -- a harsh punishment that far outstripped the seriousness of the crime.

The proposed settlement [PDF] would drastically alter Philly's forfeiture laws and policies. Importantly, it would strip the financial incentive for seizures by redirecting forfeiture funds towards drug rehab programs and away from the law enforcement agencies that have directly profited from this program for years.

It also would make tiny forfeitures -- the ones least likely to be disputed -- a historical relic. Seizures of less than $1,000 would either need to be tied to an arrest or used as evidence in criminal cases. Cash seizures of less than $250 would be completely forbidden. This is important because data shows the median cash seizure by Philly law enforcement is $178.

More due process is being introduced into the forfeiture process as well. If citizens can show a need for the seized property, they may be able to retain possession of it throughout the forfeiture proceedings. Property owners would -- for the first time -- be allowed to file requests for continuances if unable to make scheduled court dates. It also fully shifts the burden of proof to prosecutors, making them prove owners knew about illegal use of their property.

If the entire settlement is approved, the perverse incentives that have turned a potentially-useful crime fighting tool into a crime of opportunity will be removed and replaced with a set of deterrents that will steer law enforcement towards seizures supported by prosecutions and convictions, rather than by conclusory statements about theoretical illegal activity.

It if it wasn't so obnoxious with so many far-reaching impacts on consumer welfare, internet health, and competition--it could be deemed high art.

ISP lawyers argue California's state law violates the dormant commerce clause of the Constitution (they've previously, unsuccessfully, tried to argue that net neutrality also violates their First Amendment rights). Both lawsuits rely heavily on language embedded in the FCC's net neutrality repeal (at direct Comcast and Verizon lobbyist behest) attempting to prohibit states from stepping in and filling the consumer protection void. This "preemption" language, the broadband industry insists, directly prohibits states from protecting consumers from bumbling telecom monopolies:

"This case presents a classic example of unconstitutional state regulation. The State of California has enacted SB-822, entitled the "California Internet Consumer Protection and Net Neutrality Act of 2018,” directly regulating the provision of broadband Internet access services (“BIAS”).

This statute was purposefully intended to countermand and undermine federal law by imposing on BIAS the very same regulations that the Federal Communications Commission (“FCC”) expressly repealed in its 2018 Restoring Internet Freedom Order (and by adopting even more restrictive regulations), despite the fact that both the FCC decision and the federal Communications Act of 1934, as amended (“Communications Act”), prohibit states from taking such action with respect to jurisdictionally interstate services like BIAS."

Shockingly, there are a few things here the industry is being misleading about. One, the industry likes to conflate "internet access services" with the internet itself. The former has always been regulated via joint cooperation between the federal and state government, which is why you have things like local public service commissions that regulate things like pole attachment, local franchising, and some privacy issues. There is no part of the Telecom Act that prohibits states from protecting consumers, and that was even something courts made clear in the net neutrality court cases the industry recently lost on this very subject.

The problem for ISPs, as numerous net neutrality legal experts have pointed out repeatedly, is that (ironically) when the FCC gave up its authority to regulate broadband providers by rolling back their classification of ISPs as common carriers, they also eliminated their right to tell states what to do. ISPs like Charter Communications have already tried to lean on this language to dodge state lawsuits over terrible service, and it hasn't gone well for them.

The cooperative lawsuits between the Trump DOJ and numerous ISP lobbying organizations gives you a pretty solid understanding of how worried the industry is about California's new law, which largely just reflects the 2015 FCC rules industry spent millions of dollars to repeal. Obviously ISPs can't just admit they don't want government preventing them from abusing a lack of broadband competition to overcharge consumers and (further) hamstring competitors, so groups like the CTIA issued statements trying to hold the industry up as a pillar of integrity on the assumption you're all aggressively dimwitted:

"The nation’s broadband providers are the innovation engine of America’s digital economy and remain committed to an open internet for consumers. We oppose California’s action to regulate internet access because it threatens to negatively affect services for millions of consumers and harm new investment and economic growth."

There is, if you're playing along at home, literally nothing in that statement is true. Claims that net neutrality hurts investment have been soundly and repeatedly debunked by the industry's own financial data and statements, and anybody believing Comcast and AT&T truly care about an "open internet for consumers" after the years of nonsense they've pulled on this subject should most assuredly avoid operating heavy machinery.

At best, the industry hopes to buy itself some time ahead of the looming lawsuit by 23 State Attorneys General, which will hope to show how the FCC engaged in all manner of unethical nonsense as it rushed to give the broadband industry a sloppy kiss last fall. Even if they win that lawsuit, numerous legal experts I've talked to consistently doubt the state preemption language holds up in court, since a regulatory agency that has abdicated its authority to regulate, can't then step in and prevent the states from doing so themselves.

And even if the broadband industry wins both the FCC legal fight and the state level battle (finding an idiotic or compromised judge is never out of the question), they still have to find a way to stop some future FCC or Congress from passing new net neutrality rules, an obvious threat given the likely, looming political sea change. That's why the industry is simultaneously pushing for a new federal net neutrality law; but only one that it has written in a bid to get something on the books that preempts tougher state or federal guidelines. Congress isn't buying, and isn't likely to after the midterms, either.

Sure, the federal government under both parties has long coddled the telecom sector by turning the other cheek as ISPs aggressively erode competition and consumer choice at every opportunity, saddle you with bogus fees, and generally misbehave. But this synchronous government/industry assault on consumers, consumer protections, state rights and democratic process is officially taking things to an entirely new level of corrupt dysfunction, all under the banner of purportedly "restoring internet freedom." If you believe what they're selling, I've got a cornucopia of used bridges and swampland I think you'll find irresistible.

A great example of that can be found in MUSO's recent partnership with the Association of Independent Music (AIM), where the latter has put out a press release about just how much great work MUSO has performed in taking down pirated content in the past four months.

This week AIM sent out a press release showing how much has been achieved over the past four months. The results, shared by AIM’s Head of Legal & Business Affairs Gee Davy are impressive indeed.

“AIM’s partnership with MUSO began in May this year, and to see 5 million takedowns achieved already reflects the speed and efficiency with which MUSO has covered the catalogs across the independent music community,” Davy notes. “Our members report that they are delighted with the service, which not only protects their releases from online piracy, but creates a visual dashboard to track piracy and protection activity in real time.”

Those are big, impressive sounding numbers that are designed to relay to AIM membership just how much of an effect the partnership with MUSO is having. And, were you simply reading this as an AIM member, you can imagine being quite pleased. To have 5 million takedowns of pirated content occur over four months is going to have an effect, even if it's still largely a game of whac-a-mole.

Unfortunately, actually looking at the results these numbers are based on results in the realization that this is all bullshit spin and not at all representing the actual result AIM is touting in its release.

The press release doesn’t mention it, but, from what we can see, the five million takedown requests were (nearly) all targeted at Google. This means that no infringing content was taken down there, only search results. Looking more closely at all the takedown requests MUSO sent to Google, on behalf of AIM, an even more disturbing picture emerges.

Google’s Transparency Report confirms that AIM sent close to five million ‘pirate’ URLs to the search engine. However, as it turns out, the vast majority of all reported URLs were not removed. And for a good reason. Most of the links that were reported are simply not in Google’s search index. So, logically, there is nothing to remove.

In other words, that 5 million number isn't successful takedowns of infringing content, nor is it even successful takedowns of Google search results. Instead, it appears that some sizable percentage of that 5 million number is simply the number of takedown requests sent out to Google to delist search results. And, were that not enough, it seems that this is all part of some automated takedown notice system that isn't even necessarily tied to actual infringing content that exists for Google to index. TorrentFreak went through the results and searched against torrent sites to search for the actual infringing content that would correspond with the search index removed. In many, many cases, no such infringing content exists.

As mentioned before, these links were never indexed by Google. However, even the torrent site in question doesn’t return any infringing content, as the searches in question return no results.  The above suggests that most of these takedown efforts are rather pointless. The URLs are not in Google’s index and even if they were, many would not point to infringing content.

To us, it appears that many of these notices are automatically generated by using variations of search strings on pirate sites, whether these point to actual pirated content or not.

So if figures don't lie but liars figure, AIM is very squarely in the liars category. Waving a "mission accomplished" banner for results that can be characterized as "rather pointless" is the sort of thing that ought to really piss off AIM members. And, frankly, cause them call into question just how important any of this anti-piracy activity is to begin with. MUSO, for its part, sure ought to be pushing back against this Press Release if wants to retain any of its own credibility.

Making things worse are the officers themselves. When excessive force or other unconstitutional tactics are deployed, body cams seem to malfunction at an alarming rate. And that's only if officers can be bothered to turn them on at all. Body cams have served up a bunch of exonerating footage and delivered evidence to prosecutors, but have done little to make law enforcement more accountable.

This trend isn't in any danger of reversing. Body cam manufacturers are seeking to expand their offerings, but the focus appears to be on giving law enforcement the extras it wants, rather than what the public is actually seeking. A good summary of recent body cam developments by Sidney Fussell at The Atlantic contains a discussion a new patent application by body cam manufacturer Digital Ally.

While the patent application contains some nice "triggering" effects that may result in more captured footage of questionable incidents, it also contains something that would turn passive recordings into active surveillance.

In mid-September, Digital Ally, a cloud-storage and video-imaging company, announced a series of patents for cameras that would automatically be triggered by various stimuli, not just an officer pressing record. Theoretically, these would end the problem of both re-creation and cameras inexplicably failing to record use-of-force scenarios.

Some of the “triggering events” in Digital Ally’s patents are for crisis response, in the event of a car crash or a gun being pulled from its holster. But some of the auto-triggers would cause the cameras to record simply as police move through public spaces. As described in one patent, an officer could set his body camera to actively search for anyone with an active warrant. Using face recognition, the camera would scan the faces of the public, then compare that against a database of wanted people. (The process could work similarly for a missing person.) If there’s a match, the camera would begin to record automatically.

As Fussell points out, the tech isn't ready yet. Processing power is still an issue. Facial recognition software needs to perform a lot of complex calculations quickly to provide near-instant feedback, and it's unlikely Digital Ally has found a way to cram that into a body cam yet. Moving the processing to the cloud solves space management problems, but would require far faster connections than are ordinarily available to portable devices.

But it won't be this way forever. And that has a lot of privacy implications, even when the footage is gathered in public spaces. Law enforcement doesn't have the right to demand you identify yourself in most situations, but inserting facial recognition tech in body cams strips away a small protection against government power citizens currently possess. The software will provide officers with personal information even when there's no reason for officers to have it. All of this is problematic even before you get to the issue of false positives and the havoc they can wreak.

It's almost inevitable facial recognition tech will be deployed by law enforcement. The DHS is already aiming cameras at passengers flying into the country to search for criminal suspects and others it wants to subject to additional screening. Any public place that routinely hosts large gatherings of people will be next in line for biometric scanning. And once the tech catches up with the dream, body cams will ID pedestrians by the hundreds, even when cops aren't actively searching for subjects or suspects.

No matter how it's pitched in the future, it's important to remember law enforcement isn't somehow "owed" every tech advance that comes its way. Supporters will say facial recognition tech makes both officers and the public safer. This may be true, but so do all sorts of privacy/Constitutional violations. Our rights protect us from the government. And that includes the right to go about your business without being asked by officers to identify yourself. Removing this right via technical wizardry and making it a passive experience for all involved doesn't make it any less of a violation.

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And, now the Associated Press has a big article looking at the impact of FOSTA and it's not pretty. The closing down of various online forums for sex workers has driven more sex workers into the street, where their lives are at significantly higher risk:

Law enforcement in San Antonio arrested 296 people for prostitution between March 21, when the Sex Trafficking Act passed Congress, and Aug. 14, according to a public records request — a 58 percent increase from the same span the year before, when police made 187 arrests.

Phoenix police said they experienced a surge in street-prostitution arrests in 2018 but did not provide figures. In Houston, levels have remained constant, but more 14- to 17-year-olds have been working outdoors since May, said James Dale, a police captain.

Police in Sacramento, California, noted three street-prostitution arrests between March 21, 2017, and mid-August of that year. During the same period in 2018, they recorded 15.

The stories from women who have shifted from using the internet to the streets are pretty harrowing:

Kara Alexander, who lives in Florida, advertised her services on Backpage, Craigslist and other sites before April. When media companies closed down sections hosting adult services ads, she said, she started working on the streets.

In May, she said, a client raped her and poured alcohol in her body in an attempt to destroy evidence. Alexander, 29, said she had faced violence while working online, but never on this scale.

“It’s a different kind of danger,” she said.

A sex worker who goes by Quinn and didn’t want her real name used because she feared arrest and other repercussions said that in the age of the trafficking act, she hasn’t been able to rack up enough jobs. Near the end of April, she started selling herself outdoors in Boston for the first time since she was a teenager, she said.

“There’s no backup plan for people like us,” said Quinn, who said she was raped and beaten in August but could not afford treatment.

There are more stories and information in the full AP piece.

And, again, none of this should be a surprise. Before FOSTA became law, we (and many others) pointed to a recent study that showed how adult ads on Craigslist "reduced the female homicide rate by 17.4%" when it was available. And, to put some context on that number, that's the overall female homicide rate, not just "the female homicide rate of sex workers." Forcing more women into the street is, literally, leading to people dying.

And it is infuriating that this was done by Representatives like Ann Wagner and Mimi Walters who insisted they were doing it to save women's lives, when the reality is that they have only served to put more women in potentially mortal danger.

The AP article also highlights another point that we had mentioned previously: FOSTA is enabling much more trafficking by empowering pimps, while online sites allowed sex workers to avoid needing to use pimps:

Alexander said a friend of hers was attacked by pimps who were incensed she was working without them, and Quinn said pimps have become much more aggressive now that they see a market.

It would be nice if some reporters actually ask Representatives like Ann Wagner and Mimi Walters, or Senators like Rob Portman and Richard Blumenthal how they feel about the fact that the bad law that they pushed for, claiming it was necessary to save young women, has now created a situation where those women are placed in significantly more danger? In the business world, if you push for a proposal, once it's implemented, people check to see whether what you claimed would happen would -- and if it didn't, you're often asked to explain why not. It's incredible that Congress can pass a law insisting it will do one thing, and when it does the exact opposite, no one seems to care.

While carriers like to insist that they only throttle user wireless connections in cases of network congestion, a recent study explored how that wasn't remotely true. Carriers are increasingly throttling connections just to create arbitrary restrictions, and these restrictions, more often than not, have less and less to do with actual network congestion, and more and more to do with nickel-and-diming subscribers:

"There’s no evidence that any of these policies are only happening during network overload. They’re throttling video traffic even when the network doesn’t need to. It happens 24/7, and in every region where we have tests."

Another study by Open Signal released last week notes that the United States lags behind dozens of other countries in terms of quality wireless streaming. The report took a closer look at streaming performance across 69 countries, using 90 billion measurements across 8 million devices between May and August of 2018. Countries were then ranked on the quality of their "overall video experience" based on how frequently videos buffered, the resolution of the stream, and overall video load times.

The United States didn't fare very well. U.S. video quality ranked 59th in terms of overall video quality, and 34th in terms of average speeds. Not too surprisingly, the combination of slower wireless broadband speeds and arbitrary throttling and deprioritization practices carriers engage in are a major reason for the the U.S.' poor showing:

"Video experience can also be heavily impacted by operator policy. Many operators globally use video optimization technologies to restrict the level of video resolution their customers can access on their phones. As our tests sample video at different resolutions, any downgrading of video quality — say from HD to SD — would have an impact on our scores.

The U.S. is a prime example of such policies at work."

Don't forget that studies show that U.S. consumers pay significantly more money for mobile bandwidth than users in many developed markets, only to have their actual video quality still ranked terribly. For its part, Open Signal leans heavily on the carrier justification for these arbitrary limits, insisting that they're done exclusively to protect the network from congestion:

"Depending on the type of video, a 720p stream can consume twice as much or more data than a 480p stream. And as video now accounts for the majority of all mobile internet traffic, a doubling of the gross tonnage of video consumption would have a major impact on any operator's network. More traffic leads to congestion, and congestion not only impacts overall speeds available to consumers but can also lead to inconsistent connections and poorer latencies — all of which have a bearing on video experience."

But that brings us back to that recent study by Northeastern, which showed that carrier throttling of video was in no way related to congestion. Yes, carriers may be eager to tightly restrict video to prevent traffic from being greater to save money, but that may not necessarily mean they're responding to congestion. As made clear above, most carriers are very interested in erecting artificial tiers of service, where you have to pay more money for a stream to work as the sender originally intended. That's less to do with congestion, and more to do with trying to make even more money off of American consumers.

With net neutrality dead and federal consumer protection taking a nice long vacation, you're going to see a hell of a lot more of that type of behavior if the mega-ISPs and the FCC win the looming lawsuit filed by 23 State Attorneys General.

The government alone will decide how much praise must be slathered on designated "heroes and martyrs." Criticism has been banned, so citizens are at least clear on that aspect. The law went into effect on May 1st, immediately leading to the ban of a Chinese "rage comic" site. This site is the first to be successfully sued under the new law.

The company behind the popular Chinese “rage comics” that were censored earlier this year for defaming a civil war general has been ordered to pay his relatives 100,000 yuan (US$14,500) in compensation.

Ye Ting fought for the Communists in the war and was jailed for five years after being captured by the opposition Nationalists. Soon after his release in 1946 he was killed in a plane crash.

Seven of Ye’s relatives filed a civil lawsuit for defamation against Xian Momo Information Technology in May, soon after it had been ordered to shut down Baozou Manhua, its online platform for rage comics which at the time was the biggest in the country.

Weirdly, the lawsuit centered on a poem written by Ye during his incarceration, which was featured in a video posted to the site spoofing abortion advertisements. According to the court, this "damaged" the reputation of a man who has been dead for 72 years. The law appears to have enacted some sort of hereditary right -- not completely unlike our nation's copyright terms -- which allows surviving family members to be legally offended on behalf of their dead relatives.

The court also decided the use of a poem in a spoof ad also harmed society in general, further cementing the ridiculousness of this censorial law and the government enforcing it.

Censorship in China is no laughing matter. The efforts are ridiculous, as are the justifications, but the government is dead serious about rehabilitating its image through direct control of the media, rewritten text books, and litigation. The law is likely to remain on the books forever, retroactively assuring the censors and despots of today's government will be shiny, happy heroes of the republic for years to come, forcibly respected by the children and grandchildren of today's silenced critics.

And now one fashion designer has decided to oppose the trademark for a maker of parody pet clothing, arguing ostensibly that the public both cannot tell the difference between human clothes and pet clothes, as well as that this same public doesn't have a sense of humor.

While Demna Gvasalia has been preparing for Balenciaga’s Spring/Summer 2019 runway show, the brand’s legal team has been readying for a fight. Counsel for the Paris-based brand moved to oppose a pending U.S. trademark application for registration this week, taking issue with “Pawlenciaga,” a trademark that is being used by Pawmain Pets, a North Carolina-based company in the business of making what it calls “parody streetwear for your pets.”

According to the opposition that Balenciaga filed on Monday, Pawmain Pets’ “Pawlenciaga” trademark – if registered for use on leather goods, as Pawmain has proposed – “will cause confusion, mistake and deception with respect to those goods, by virtue of [Balenciaga’s] prior registration, use and fame of its Balenciaga trademarks, including [on leather goods].” Moreover, Balenciaga alleges that Pawmain’s proposed registration “would substantially harm [Balenciaga]” and “is likely to cause confusion” with Balenciaga’s trademark rights, which date back to at least 1975.

It's quite a bold argument for a high-end fashion designer to insist that a puntastic name is all that's needed to confuse the public between its goods and those made for animals. One would think that the quality of the product might do some work to stave off such confusion, but apparently not. Still, the average buyer of pet-goods, particularly such luxury items as pet clothing, will be well-acquainted with the long and glorious tradition of puns and parody in the pet industries. It seems laughably unlikely that anyone is actually going to be confused as to the product source or association.

Now, while the USPTO has apparently never upheld a parody defense to a trademark opposition, though that defense has obviously been used a zillion times once lawsuits have been filed, it seems there is already some caselaw on the books that the USPTO might turn to as particularly relevant.

The legally-minded amongst us will already be thinking of a similar matter that precedes Balenciaga’s opposition: Louis Vuitton v. Haute Diggity Dog. In that case, Louis Vuitton sued the pets-wear company, alleging that ones of its handbag-shaped dog toys, one that was labeled “Chewy Vuiton” and that was similar in shape, monogram (“CV” vs. “LV”), repetitious design and coloring to a Louis Vuitton Speedy bag, ran afoul of trademark and copyright law. The Fourth Circuit Court of Appeals handed Haute Diggity Dog a win in 2007, holding that despite Louis Vuitton’s claims of trademark infringement and dilution and copyright infringement, Haute Diggity Dog could continue to make and sell plush dog toys that make use of famous luxury trademarks, as “Haute Diggity Dog’s parody is successful.”  

That kind of makes this pretty straightforward, as it's the exact same subject matter and industries participating in this opposition. Whether the USPTO will bother to look to that case to inform its decision is an open question. What isn't an open question is that there was obviously no reason for Balenciaga to do this. There were plenty of other routes to take, including simply ignoring this whole thing while noting that there was little concern for customer confusion. Why it chose to go the bullying route is a question that needs to be put to the designer.

There are thousands of other ones, some of which are actually kinda funny.

The reason this is in the news again is that the Swedish ISP Banhof attempted to use the meme in an advertisement on Facebook and Instagram:

A bunch of people complained that the ad was sexist, and reported it to the Swedish Advertising Ombudsman, who recently agreed that the ad was sexist.

"It portrays women as interchangeable objects, and that only their appearance is interesting," wrote the ombudsman, which was unanimous in its decision. It added that there was no link between the services provided by Bahnhof and the objectified image of the women.

"According to the committee, the objectification is reinforced by the fact that women are designated as workplace representatives while the man, as the recipient of the advertisement, is being produced as an individual," the judgment said.

Some of the reviewers involved in the decision also said that the advert presented "degrading" stereotypical views of both women and men. "It gives the impression that men might change female partners in the same way they change jobs. One notifier pointed out that Bahnhof may put off female applicants with the advertisement," the judgment stated.

That feels... like a particularly humorless way to read a meme (it should be noted, FWIW, that the same photographer has a similar stock image with the gender roles reversed).

Also, the meme doesn't seem to be commentary about women being interchangeable objects (if anything, it's about what a jackass the guy is), but especially it's use as an ad here seems to be a lot more about playing off the popularity of the meme, and making Banhof seem hip and on top of what all the internet kids are into these days. Amusingly, Banhof noted this in its own statement -- while mocking its own late-to-the-game use of this meme:

"Everyone who follows the internet and meme culture knows how the meme is used and interpreted. [Whether someone is a] man, woman or neutral gender is often irrelevant in this context. We are an internet company and are conversant in this, as are those who would look for a job with us, so we turned to that target group," the statement continued. "If we should be punished for anything, it's for using an old and tired meme."

It's unclear from the reporting if there's any actual punishment for Banhof, or if it just can't keep using that advertisement (though, given that this has now received a ton of press attention, it probably has given the company a lot more attention). Either way, Sweden's Advertising Ombudsman needs to lighten up a bit and maybe enjoy a meme.

This week, we've got a special cross-post from Rob Reid's excellent After On podcast. After a conversation between Mike and Rob about the possible end of the world, we pivot to the full episode of After On in which Rob talks to neuroscientist David Eagleman about his fascinating work using technology to create new human senses. We hope you enjoy it!

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A child abuse investigation unearthed by Forbes includes the first known case in which law enforcement used Apple Face ID facial recognition technology to open a suspect's iPhone. That's by any police agency anywhere in the world, not just in America.

It happened on August 10, when the FBI searched the house of 28-year-old Grant Michalski, a Columbus, Ohio, resident who would later that month be charged with receiving and possessing child pornography. With a search warrant in hand, a federal investigator told Michalski to put his face in front of the phone, which he duly did. That allowed the agent to pick through the suspect's online chats, photos and whatever else he deemed worthy of investigation.

This won't become a Fifth Amendment test case for several reasons.

First, Michalski apparently consented to the search by using his face to unlock the phone. If this was as voluntary as it appears, it pretty much eliminates a Constitutional challenge.

Beyond that, it's unlikely a court would find someone's face testimonial. For the most part, courts haven't found fingerprints to be testimonial, even if the application of a fingerprint leads directly to the production of evidence to be used against the phone's owner.

The "foregone conclusion" argument would only require law enforcement prove the phone belongs to the person they're asking to unlock it -- information easily acquired with a subpoena from the service provider.

Even if all these hurdles could be jumped, actions taken by the investigating agent pretty much eliminated any evidence the defendant might have challenged, as Forbes' Thomas Brewster reports.

Whilst Knight may've found some evidence of criminal activity when he manually searched the device, in one respect the forced Face ID unlock of the iPhone X was a failure. It wasn't possible to siphon off all the data within using forensic technologies. That was because the passcode was unknown.

In modern iPhones, to hook the cellphone up to a computer and transfer files or data between the two, the passcode is required if the device has been locked for an hour or more. And forensic technologies, which can draw out far more information at speed than can be done manually, need the iPhone to connect to a computer.

It appears Knight didn't keep the device open long enough and so couldn't start pulling out data with forensic kits. He admitted he wasn't able to get all the information he wanted, including app use and deleted files. What Knight did get he documented by taking pictures.

Michalski's lawyer confirms in a comment to Forbes there's been no evidence produced from the unlocked iPhone, leaving him nothing to challenge in court.

Even if this case is a wash in terms of Constitutional challenges, that doesn't mean the status quo will remain unchanged as more phone manufacturers move towards biometric-based security features. Courts may recognize -- as they have with smartphones and cell location data -- that old assumptions about privacy and presumed government access are no longer valid in a world almost wholly reliant on portable devices filled to the brim with personal data and documents.

When NAFTA was originally passed, this practice wasn't as common. Nowadays, it's more or less considered mandatory to include these issues in trade agreements. This is unfortunate for a large number of reasons, but it does mean that if these issues are going to show up in trade agreements, at least they ought to come out in a way that isn't harmful.

And that takes us to NAFTA, which our current president demanded be renegotiated for no clear reason other than he was sure it was bad and we were being ripped off. And, voila, we now have a new agreement called the USMCA agreement designed to replace NAFTA (though I agree that we really missed a huge opportunity in not calling it the CAMUS agreement (or at least *something* that is pronounceable). And, because the RIAA and MPAAs of the world forced these issues into trade agreements, this new USMCA has a bunch of issues that have literally zero to do with "trade" but could have pretty widespread impacts on innovation and the internet.

Michael Geist has the best overview I've seen of the agreement, highlighting both the good and bad aspects of the agreement. On the bad side of the ledger, it forces Canada to extend its copyright terms from "life plus 50" to "life plus 70." Thankfully, it appears the weird USTR confusion over the earlier idea that it was going to require life plus 75 years is now gone. But requiring life plus 70 is already problematic. It's especially bad for Canada in that it will involve a massive taking of the public domain, and locking it up for two extra decades for no good reason. But it's also bad for the US and Mexico in that it effectively blocks any chance of rolling back copyright terms to more reasonable levels (a proposal that even the US Copyright Office appeared to support in years' past).

Also bad: expanding the data protection term of biologics. This is something that the US has pushed for in other agreements over the years and it's really dangerous for basic science and innovation in the drug space. Big pharma companies want it because it allows them to extract monopoly rents, but it harms our ability to actually understand the efficacy of drugs and to make better drugs. We've also discussed how this can lead to real harm in silencing people pointing out health risks of certain drugs.

We also remain concerned about the vague "anti-counterfeiting" language that has been used in the past to justify some truly draconian policies that could create huge problems for innovation and privacy.

On the more neutral-to-possibly-bad side of the ledger, the agreement does allow Canada to retain its current "notice-and-notice" copyright policy, as opposed to a "notice-and-takedown" policy for copyright infringement that both the US and Mexico have. This is good, because Canada's notice-and-notice policy was the result of many years of difficult negotiations and an attempt to do something not as draconian and problematic on questions of free speech than the notice-and-takedown system that we see abused nearly every day here in the US and elsewhere. Unfortunately, what puts this in the "neutral-to-possibly-bad" category is that Canada is only allowed to keep notice-and-notice because it's effectively grandfathered in. The agreement more or less blocks the US or Mexico from moving to such a system.

This is ridiculous. Just as we're getting evidence of how much better a system notice-and-notice is compared to notice-and-takedown, suddenly the US and Mexico will be barred from moving to such a system, even if the evidence shows that it's better for everyone? That makes no sense at all.

On the neutral-to-possibly good side of the ledger, despite concerns that it was missing in earlier drafts and reports, the agreement does include a provision on what they refer to as "limitations and exceptions," but which we note are really user rights such as fair use. It's good that this is there. But... it's less good that it uses the traditional "three steps test" found in Berne Convention. That's concerning because at least some interpret the three step test to limit fair use (and some even argue -- incorrectly -- that US fair use is not permitted under the three step test). So, the "good" part is that the agreement includes something on user rights, but the bad part is that it defaults to the three step test which could be used to significantly limit just how fair use is applied.

Finally, on the "good" side of the ledger, the USMCA does provide language establishing strong intermediary liability protections:

no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information.

This is useful, especially as CDA 230 and DMCA 512 are under attack. Again, I'm disappointed that we should need to use "trade agreements" to argue this point, but since others are trying to undermine intermediary liability through trade agreements, there needs to be some pushback, and this does establish that in a clear manner. Hilariously, a former RIAA exec who was instrumental in getting copyright expansions placed into trade agreements around the globe is now whining about how awful it is that intermediary liability protections are found in this new agreement, citing concerns raised by plenty of people who support these protections, but who in the past protested efforts to expand copyright rules through those trade agreements. What a hypocritical position for him to take. Dude, you were the one who forced these issues into trade agreements: don't freak out and cry about it when you face some level of pushback in the form of policies you dislike. You made your bed.

In the end, again, it's disappointing that these issues should be in a trade agreement at all. None of this really has anything to do with "trade" in the traditional sense. But they are in this agreement, and thus we should hope that they get the various issues right. The inclusion of intermediary liability protections is clearly a good result if you must include these kinds of provisions, but the copyright and biologic expansions are still incredibly problematic. Unfortunately, it seems likely that the response from the USTR or anyone else will be "well, you win some, you lose some" rather than fixing the problems.

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Other opportunities have arisen, though. A case involving wiretapping MS-13 gang members resulted in the government seeking more compelled decryption, this time from Facebook. The FBI could intercept text messages sent through Messenger but was unable to eavesdrop on calls made through the application. Facebook claimed it didn't matter what the government wanted. It could not wiretap these calls for the government without significantly redesigning the program. The government thought making Messenger less secure for everyone was an acceptable solution, as long as it gave investigators access to calls involving suspected gang members.

The case has proceeded under seal, for the most part, so it's been difficult to determine exactly what solution the government was demanding, but it appears removal of encryption was the preferred solution, which would provide it with future wiretap access if needed. If this request was granted, the government could take its paperwork to other encrypted messaging programs to force them to weaken or destroy protections they offered to users.

The ruling in this case is still under seal, but Joseph Menn and Dan Levine of Reuters were able to obtain comments from insiders familiar with the case to determine the outcome.

U.S. investigators failed in a recent courtroom effort to force Facebook to wiretap voice calls over its Messenger app in a closely watched test case, according to two people briefed on the sealed ruling.

[...]

Arguments were heard in a sealed proceeding in a U.S. District Court in Fresno, California weeks before 16 suspected gang members were indicted there, but the judge ruled in Facebook’s favor, the sources said.

The DOJ was hoping to have Facebook held in contempt for failing to comply with the decryption order. It appears this isn't going to happen. The government may need to seek outside assistance to intercept Messenger calls. But that's a much more difficult prospect than breaking into an iPhone physically in the possession of the government and it would possibly involve vulnerabilities that might be patched out of existence by developers.

The government is presumably hunting down its next test case for encryption-breaking precedent. With the Supreme Court finding for the Fourth Amendment in two recent cellphone-related cases, the chance of obtaining favorable precedent continues to dwindle.