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Posted on Techdirt Podcast - 11 December 2018 @ 1:30pm

Techdirt Podcast Episode 192: Section 230 And Political Bias

from the debate-time dept

We've got another panel discussion from the Lincoln Network's Reboot conference this week, all about the law on everyone's minds lately: Section 230 of the CDA. The debate includes law professor Eric Goldman, the EFF's Corynne McSherry, and Dr. Jerry A. Johnson from National Religious Broadcasters, offering up a wide spectrum of opinions on Section 230 and political bias.

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

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Posted on Techdirt - 9 December 2018 @ 12:00pm

Funniest/Most Insightful Comments Of The Week At Techdirt

from the fair-comment dept

This week, we covered the fallout of FOSTA, which can be summarized as "nothing positive accomplished, plus dumb new rules at sites like Tumblr". Both our winning comments on the insightful side came in response to people attacking this evaluation in various flawed ways. In first place, it's Wyrm correcting an incorrect assertion about the impact on sex trafficking ads:

Trolling or just misunderstanding?

The article doesn't attribute the raise in ads to FOSTA (ie "they raised because of FOSTA"), but notes that they still raised after FOSTA (ie "they raise despite FOSTA"). Hence, the law didn't accomplish this objective and introduced a lot of other negative side effects (censorship, more difficult investigations, ...) that were indeed attributed to this failure of a law.

It also points out that the supporters lie about the result both in effect ("raise" instead of "drop") and cause ("it dropped because of FOSTA", when the small-term drop that did occur happened before FOSTA).

I'll pass on commenting the rest of the ridiculous rant.

In second place, it's Stephen T. Stone with a lengthy refutation of those who would celebrate Tumblr's sex ban:

Stephen T. Stone (profile), 5 Dec 2018 @ 11:19am I always enjoy dismantling these little treatises—especially when they hit upon something I am intimately familiar with: sexual content in general and queer content in particular.

So what's the "problem"? Less pornography?

Nudity, sexuality, and discussions thereof also fall under this ban. And since LGBT/queer content is, by nature of our wonderful society, damn near always seen as explicitly “sexual” in nature even if it were otherwise innocuous (e.g., a gay couple kissing), that content tends to get axed first.

Tumblr was a place where queer people could have frank discussions about their sexual orientations and gender identities with other queer people and not worry (too much) about being censored in some way. Queer artists of all kinds found an audience on Tumblr that they might not have found elsewhere before Tumblr became a thing, thanks in large part to Tumblr’s reblogging functionality. So yes, the ban on mature/“NSFW”/“adult” content disproportionately affects queer people because it is their content that will likely be axed well before straight content of similar (or greater) levels of sexual activity. This whole situation goes beyond mere “pornography”; if you were more interested in growing your perspective of the world instead of trying (and failing) to make yourself seem like a superior person, you might understand that.

prostitutes are hampered and even endangered by FOSTA, with clear implication that open solicitation should be permitted

Oh, a diversion into something else? Okay, I got time to kill. So! Two things:

  1. Prostitutes who work for pimps and traffickers are explicitly endangered by FOSTA because FOSTA makes harder the job of finding those pimps and traffickers.
  2. If an adult willingly wants to exchange sex for cash, I fail to see the issue.

Several pieces bewailing that convictions for downloading child pornography gained under a warrant should be thrown out because of a mere Court Rule that hadn't been updated for the internet where actual location of downloader cannot be known in advance.

Yeah, you’re gonna have to provide links for that, because you’re either pulling shit out of your ass or exceedingly simplifying things so as to remove important context and make yourself sound superior.

Many other pieces wanting convictions of drug dealers thrown out on sheerly technical grounds, with underlying premise that the law is to protect the known guilty. Similarly, pieces cheering when such convictions are overturned on technicality.

Drug dealers are not inhuman monsters that we can lock up without trials, regardless of whether you want to believe that. They are people—and so long as we have laws that protect the rights of the people, those drug dealers are afforded both the presumption of innocence before they enter a courtroom and the same protections that the law affords to everyone else. You might wish to suspend their rights for the sake of putting them in prison; the courts, however, will not abide by your unconstitutional actions.

After the riot at Trump Inauguration causing much property destruction, with apparent organizing in advance, you resisted Facebook being required to provide evidence of what persons of own free will had published to the entire world.

What Techdirt resisted was an overreach by prosecutors to discover evidence that had nothing to do with convicting people of a crime and everything to do with finding more people to arrest on trumped-up charges because they happened to be at the protest at the same time as said destruction of property. (Also you should be happy that only property was destroyed. A car can be replaced; a human life cannot.)

According to your corporatist assertions elsewhere, Tumblr is fully within its "rights" to so manage its "platform". You claim that "platforms" can deny access for their own definitions of "hate speech", BUT YOU COMPLAIN when what's forbidden is well within traditional limitations, widely accepted as "not safe for work".

And here…we…go.

Verizon is fully within its rights to manage Tumblr however it sees fit. (Reminder that Yahoo bought Tumblr and Verizon bought Yahoo. Verizon owns Tumblr as a result. Ha Ha! Corporate vore.) Their decisions, however, can be criticized by anyone—including the very userbase that would be alienated by those decisions.

For the past few years, Tumblr had several problems. The porn bot issue aside, it also had issues with refusals to mitigate on-site harassment, rampant spreading of White nationalist/Nazi propaganda, and—yes—the child pornography problem. Tumblr management chose to sidestep all those issues until circumstances forced their hand into addressing them, then it chose to use a supposedly one-size-fits-all solution in banning “NSFW” content and declaring that to be nothing but pornography, then it enacted a shitty filter that tagged completely innocuous images as “NSFW”. Never mind when it initially removed “sensitive” content from its search results and “accidentally” targeted LGBT/queer content as a result (e.g., searching for “queer” bringing up few-to-no results).

While I understand the desire to knock pornography off the platform—high-end corporate advertisers don’t like their products appearing next to “female-presenting nipples” and all—I also understand that the “NSFW” designation (or any substitute or variation thereof) is also used to stifle legitimate conversations and information about sexuality, including educational content. It also makes creating works that either include or focus on sex much harder to share (let alone monetize). And that presents an issue for adults who want to create/experience these works, because it drives them off major platforms like Tumblr (and Twitter and Livejournal…) and back into smaller, more marginalized platforms where they cannot find/be an audience for such works.

Tumblr has every right to ban pornography, nudity, and talk of sexuality. Those of us with an ounce of goddamn sense recognize and understand this. But that does not mean we agree with the decision to do so—not if it means “hate speech” goes unpunished because it does not cross any boundaries into “NSFW” territory on first glance, and especially if queer content is the first (and possibly primary) target for the filters. We will criticize this decision for being heavy-handed, short-sighted corporate bullshit that is going to kill Tumblr faster than the spambots and the App Store lockout ever would have.

If you do not like our criticisms, well…join Tumblr and whine about it there. Come December 17th, you’ll have plenty of yelling space where all the people who were on the service used to be!

For editor's choice on the insightful side, first we've got Steven with a reminder about the constitutional basis of copyright:

"To promote the progress of science and useful arts..."

As in the purpose of copyright is to promote progress as a benefit to society. It is not for the purpose of lining the pockets of large companies who leach off the creative works of others.

Next, we've got Gwiz with a response to the false dichotomy of copyright holders versus the public:

You do realize that pretty much everyone is a copyright holder in the US, right? Please explain why only some copyright holders should have a say.

Also, this is a public matter that impacts the public. Are you really saying something along the lines of: "You drink alcohol, so you should have no say concerning drunk driving laws."? Because if you are, that is simply plum dumb.

Over on the funny side, for first place we head back to last week's comment post, where the conversation about turning comment Markdown on by default (we're going to do so soon!) continued with David clarifying the fact that we retired the option of HTML formatting:

<blockquote>I always assumed that HTML was no longer supported with the markdown ox checked, but <em>is</em> supported with it unchecked. Was I wrong in this?

In second place, our winner is mcinsand with thoughts on Twitter's response to Rudy Giuliani's hilarious URL fail:

Perhaps Twitter's statement could get a little modification at the end:

"This incident shows how difficult it is to make software idiot-proof, especially when facing idiocy of this magnitude."

One commenter on that post accused us of being petty and nitpicking over nothing, asking if we'd also harangue an official for "improper use of an Oxford comma". Our first editor's choice on the funny side is an excellent anonymous response:

Sure, if the person using an Oxford comma incorrectly is the Presidential Advisor on grammar, runs a grammar consulting firm, and goes on a laughable, false, conspiratorial rant about how Microsoft Word grammar check is out to get him.

Finally, with winter settling in up here in Toronto, I sympathize with this anonymous commenter who opted to strategically schedule their rage over ICE/CBP's constitution-free zone in America:

Well given the time of year, I will allow ICE to dominate Buffalo. Come spring though, we will see how long ICE stays around.

That's all for this week, folks!

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Posted on Techdirt - 8 December 2018 @ 12:00pm

This Week In Techdirt History: December 2nd - 8th

from the reflections dept

Five Years Ago

This week in 2013, we saw a spate of worrying changes around the world, with a German court telling Wikimedia that it's liable for user content, a French court ordering a search engine to make an entire website disappear over copyright infringement, and Italian politicians looking to have copyright handled by regulators, not courts — but at least in the UK, a court was also ruling that software functionality is not subject to copyright. Back in the US, just before the MPAA reached a settlement with Hotfile that would assuredly not actually help any artists, the agency was surprisingly told it couldn't use the words "piracy", "theft" or "stealing" during the trial. And there were developments in two major long-term IP court battles, with the appeals court overturning the ruling exempting APIs from copyright in the Oracle/Google case, and the Supreme Court agreeing to hear the Alice software patent case.

Ten Years Ago

This week in 2008, before Denuvo became the leading name in the useless and annoying DRM world, it was SecuROM driving gamers nuts while failing to stop pirates — and so nobody was happy when RockStar decided to use it for Grand Theft Auto (apparently having learned nothing from seeing the high-profile failure of Spore's DRM). Warner Music was trying to talk universities into making students pay a piracy tax, while copyright apologists were arguing that schools which refuse to do so were protecting "terrorists, pedophiles, phishing-scheme operators, hackers [and] identity thieves". The MPAA, meanwhile, was trying to claim that its desire for selectable output control on media devices was a pro-innovation stance being opposed only by the luddites at the CEA...

We also saw a few key copyright developments in the courtroom: the banning of Bratz dolls (we covered this fascinating fight in a podcast this year), and Joe Satriani's lawsuit against Coldplay.

Fifteen Years Ago

This week in 2003, the spam wars heated up as the world headed into the holiday shopping season, with spammers using new techniques to get around filters and even designing extensive spam campaigns just to annoy and hinder anti-spam companies — which were themselves becoming a lucrative industry. Alongside all this, we were beginning to realize just how much spam was coming from networks of hijacked computers. Meanwhile, with every damn tech company trying to launch an online music store, even Hewlett Packard was trying to get in on the action, while the RIAA was filing more insane filsharing lawsuits including one infamously targeting a 79-year-old retiree with no computer.

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Posted on Techdirt Podcast - 4 December 2018 @ 1:30pm

Techdirt Podcast Episode 191: Free Speech Disorder, With Mike Godwin

from the a-closer-look dept

Last week, we published a series of posts by Mike Godwin looking at Our Bipolar Free Speech Disorder And How To Fix It (check out part one, part two, and part three). But with a topic like this, there's always more to dig into, so this week we've got Mike Godwin joining the podcast to take a closer look at his ideas about free speech in the digital era.

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Posted on Techdirt - 2 December 2018 @ 12:00pm

Funniest/Most Insightful Comments Of The Week At Techdirt

from the winnin'-words dept

This week, our top comment on the insightful side comes from That One Guy in response to the UK government shaking down a third party in its efforts to go after Facebook:

"And we should trust you THIS time why again?"

In their short-sighted eagerness to get data that they apparently felt was 'owed' to them it seems the UK parliament might have just shot it's foot with regards to future cases involving the company.

By going after a third party because they were too toothless and/or gutless to challenge Facebook directly, followed by blatantly flaunting the fact that the documents in question are under seal in the US Facebook can argue that handing over any information to parliament risks having it spread elsewhere, as parliament clearly can't be trusted to show restraint or consider any legal or privacy issues involved in said information.

Not only do they come out looking all sorts of thuggish, but if they thought Facebook was stonewalling/ignoring them before they pulled this stunt I suspect they are not going to be happy with the stance Facebook is likely to take after it.

In second place, we've got a comment on our post about the FBI demanding the identities of thousands of YouTube users to go after one bombing suspect, where one commenter suggested the government had good reason and James Burkhardt noted how that was ridiculous:

Actually, no. The governemnt does not have a "legitimate cause for a wide dragnet". Ignoring for the moment that the constitution bars general warrants of this sort, Mike notes, specifically, that the police have information that would allow them to easily narrow search parameters. Device IDs, IP addresses, and other information could have been included as a means to narrow the scope of the request. So in this case they should have a far smaller dragnet, and maybe expand the net after they process these results.

Then of course outside the specifics of this case, they do not have a legitimate reason to make a wide dragnet. General warrants are prohibited by the constitution, and I expect once this warrant moves past a rubber stamp magistrate into an adversarial process, it will be squashed.

For editor's choice on the insightful side, we've got a pair of responses to perennial complaints (from a small number of parties) about our comment flagging system. First it's an anonymous response to the idea that it somehow doesn't count as "voting" since there are no upvotes to counter downvotes:

So when I vote for my Senator, it doesn't count as "voting" because I can't downvote the opposition? Fascinating argument.

And before you claim that's somehow different because "upvote vs downvote," it's not. Most voting systems work by presuming a "default" state, and then accumulating votes until the threshold of the "special" state is reached. In Senate races, the default state is "not being Senator," but if you accumulate enough votes you reach the special state of "Senator". In Techdirt, the default state is "visible comment," but if you accumulate enough votes then you can reach the special state of "hidden comment."

Next, it's a response from Gwiz to the complaint that "Techdirt's notion of free speech is to protect yourselves from what don't want to see":

That is Free Speech, you dolt.

You're free to say what you want (as long as it's actually protected speech) and I'm free to ignore you.

Over on the funny side, we've got a double winner for the first time in a while: Gary. In first place, it's his response to a discussion on last week's comments post about whether markdown formatting for comments should be turned on by default:

I almost _never_ forget to check the markdown box!

(When we first rolled out markdown, it seemed like turning it on might just trip people up — but now maybe it's time to do so, and we'll consider it!)

In second place, it's a jab at our Australian friends in response to their challenges acquiring legal media at a decent price, if at all:

TAC your comments fail to take into account the immense difficulty of translating American movies into Australian, which easily explains the delay and added expense of releases down under.

For editor's choice on the funny side, we start out with an anonymous commenter who had an understandably defeatist response to the idea that you should fight your insurance company:

Good luck with that. Works well with any wild bears you may encounter also.


And finally, another anonymous commenter offered up a take on the strained, terminology-misinterpreting logic that folks use to declare social media companies the "public square" and subject to the first amendment:

Twitter is represented by a bird. One of the most famous birds is the Albratross. The Albatross is known in myth to be important to sailers. Who is in charge of sailers? ADMIRALS. Thus Twitter is beholden to admiralty court and needs to listen to Doug's superior arguments.

That's all for this week, folks!

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Posted on Techdirt - 1 December 2018 @ 12:00pm

This Week In Techdirt History: We Finally Start Testing Responsive Design!

from the it's-about-time dept

Try out Techdirt's new responsive design on our beta site »

It hasn't escaped our notice that the design of Techdirt is a little... behind the times. There was a spate of high-profile redesigns a few years ago, with many blogs transitioning to a more "magazine"-esque style, and although they looked great, it wasn't always the most useful choice for readers — and that's part of why we didn't end up going along with the trend. We've heard from various readers over the years that they appreciate our adherence to a traditional blog format with a chronological list of posts, and the fact that we don't force the use of photos and imagery when they don't actually add anything to the content. We're also a very small and very busy team, so when we tinker with the site, we try to focus on adding streamlined features that are immediately useful, like the ability to expand posts on the front page instead of clicking through, or to hide all ads on Techdirt. We've also tweaked the appearance of the site in small ways from time to time, and in general we prefer this incremental approach over making a splash with a big redesign.

That being said, there's something very important that we've been neglecting for far too long: how Techdirt works on mobile devices. Our "lite" format is much too basic — a holdover from an earlier era of the mobile web — while our default site is extremely inconvenient on a small screen. And so today we're happy to announce that we're almost ready to launch a new responsive framework for Techdirt, enabling the default version of the site to perform well on devices of all shapes and sizes, and we'd like your help with the beta test. We built this framework ourselves using fairly basic responsive CSS, since so many pre-packaged solutions are overly complex and/or unnecessarily reliant on JavaScript.

Click this link to switch to Techdirt's beta site and try out our new responsive design! Your preference will be saved in a cookie, and you can go back to the regular version of the site at any time via your user preferences or the prominent "Exit Beta" link in the header of every page.

You'll notice a few small tweaks to the layout of our posts, but the main change is that every page should now respond nicely to any viewport size and organize itself to be easily readable and navigable. Please give it a try on your phones and tablets (or by resizing your browser window) and let us know how your experience goes. If you encounter any bugs, or have any general suggestions or comments, get in touch using our contact form or by reaching out to us on Twitter (or here in the comments!)

If all goes well, we hope to roll this change out to the site very soon, and we've got a few more adjustments (plus a general tidying-up of the visual design) in the pipeline.

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Posted on Techdirt Podcast - 27 November 2018 @ 1:30pm

Techdirt Podcast Episode 190: Should We Break Up Big Tech?

from the pro-tech-anti-trust dept

A few weeks ago, we featured a panel discussion with Mike and others at the Lincoln Network's Reboot conference on the podcast. This week we're doing something a little different and featuring another panel discussion from that conference, but one in which Mike wasn't involved. Instead, it's an interesting — and at times contentious — debate about one big question: do the big tech firms need to be broken up?

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

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Posted on Techdirt - 25 November 2018 @ 12:00pm

Funniest/Most Insightful Comments Of The Week At Techdirt

from the thanks-for-the-talk dept

This week, our first place winner on the insightful side comes from our post about the Romanian government shutting down a journalism project by abusing the GDPR. One commenter insisted it was wrong to treat this as an argument against the law itself, and an anonymous commenter offered a response to that idea:

Granted, this government would have looked for any way to stop RISE.

In this case, they've picked GDPR. Reasons for doing so are likely that it affords them the easiest and most punishing method to attack RISE.

Now. Since GDPR is awesome, please advise what meaningful protections it has against being abused in this fashion. Is there a way to throw it back in the Romanian government's face? Some penalty for bad actors? What is RISE supposed to do when faced with the actions against under the GDPR?

In second place, we've got Thad with a response to a commenter who, regarding the CNN lawsuit over Jim Acosta's press pass, claimed "I think the whole constitutional thing is bullshit" (a telling statement if there ever was one):

The judge didn't.

Guess which one of you gets to make legal decisions?

For editor's choice on the insightful side, we'll start by continuing with that particular exchange, where the original commenter responded that judges can be wrong, with Thad noted is true, but...

Judges can be wrong, but their opinions are legally binding. Yours aren't.

Further, "judges can be wrong" is a worthless statement. Yes, it's true. In the same way that, to borrow an analogy from Ken White, "some snakes are poisonous" is true.

If you've been bitten by a snake, and you ask a doctor if it was poisonous, "some snakes are poisonous" is a useless, ridiculous answer.

Similarly, if you're discussing a legal decision, and you ask if it was correct, "some legal decisions are wrong" is a useless, ridiculous answer.

Unless you can explain why this judge was wrong in this case, you are not making a relevant argument.

(Note: "Show me in the rulebook where it says a dog can't play basketball" is also not a relevant argument.)

All the judge did was grant a temporary order returning the credentials while the case moves forward.

That is the effect of the order, yes. It is not the substance of the order.

Judges don't just issue orders without explanation or legal justification. The judge granted a temporary restraining order based on the constitutional justification that the White House failed to follow due process in its decision to revoke Acosta's press pass. Further, he outlined a list of steps that due process would entail.

The judge's order was not the simplistic difference of opinion that you're making it out to be.

The judge issued an order. It was specific and it was grounded in case law. "I think it's bullshit" does not refute the argument, and your "show me in the Constitution where it says..." deflection demonstrates that you're either being disingenuous or have a child's understanding of how constitutional law works.

Put up or shut up, Mr. Coward. Address the actual arguments in the legal case and why you believe they were decided incorrectly, or be quiet and let the grownups talk.

Next, we've got an anonymous response to the all-too-frequent refrain that complaining about the government is pointless and if you don't like it your only option is to vote differently:

I did vote differently, bro. The election being over doesn't mean the winners get a free pass, regardless of who voted what. If an administration does something stupid, they should be called on it, regardless of the fact that they somehow won the election.

Winning the election does not afford the winning party the right or privilege to be free of criticism. Ever.

Over on the funny side, our first place winner comes in response to Timothy Geigner's post about a Soundcloud troll impersonating copyright holders to get music taken down. Timothy Geigner showed up in the comments with a rebuttal:

Impersonation on the internet is not a problem.

It's easy to verify identities online and falsification is unheard of.

I don't know why Tim would dispute his own post, or why everyone thought it was so funny, but here we are.

In second place, we've got Stephen T. Stone commenting on the idea that the government can't expect to get away with abusing its power:

Nah, it can. It does, probably. It just hates when its expectations meet with reality.

🎵 Government Man, Government Man
🎵 Government Man meets Reality Man
🎵 They have a fight; Reality wins
🎵 Reaility, Man

For editor's choice on the funny side, we start out with one more nod to Thad for a comment on our post about Corel managing to accuse a totally legit customer of piracy:

Another outlier! God damn there sure are a lot of these outliers!

And finally, we've got nasch pulling an obligatory-xkcd to resolve a discussion about whether "pedantonymously" is correctly labelled < a href="https://www.techdirt.com/articles/20181114/01491541047/yet-another-gdpr-disaster-journalists-ordered-to-hand-over-secret-sources-under-data-protection-law.shtml?threaded=false#c671">a portmanteau, or a protologism, or...

Maybe it's a malamanteau. https://xkcd.com/739/

That's all for this week, folks!

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Posted on Techdirt - 24 November 2018 @ 12:00pm

Order Now To Get Your Techdirt Gear Before Christmas!

from the give-a-gift dept

The holidays are approaching, and if you want to give the gift of Techdirt Gear to someone on your shopping list this year (or just treat yourself) then you've only got a couple weeks left to place your order with Teespring and ensure it ships in time!

The cutoff date to ensure delivery by Christmas with standard shipping is December 11th for US orders and December 4th for international orders! Rush shipping is also available in some locations for an extra fee, pushing the deadline to December 19th.

Be sure to check out our recent t-shirts, hoodies, mugs and stickers like the First Emojiment gear featuring an internet-ready translation of the first amendment:

And for those who are getting tired of a certain oft-repeated mantra about free speech that just happens to be completely incorrect and useless, check out our Free Speech Pro-Tip gear:

Free Speech Pro-Tip, By Techdirt

Also, earlier this year we took a treasure trove of old NSA propaganda posters that were obtained via a FOIA request from Government Attic and turned 24 of the best ones into t-shirts, hoodies and mugs. You can browse them all in our Teespring store or click on one of these thumbnails to head straight to the design of your choice:

Remember, US orders are due by December 11th for standard delivery by Christmas. Check out our store on Teespring for other great Techdirt gear!

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Posted on Techdirt - 23 November 2018 @ 12:00pm

This Week In Techdirt History: November 18th - 23rd

from the thanks-for-the-memories dept

While we're off for the Thanksgiving long weekend, we're shuffling things around a little bit — so even though it's Friday, here's the weekly history post! We'll be back to our regular posting schedule on Monday.

Five Years Ago

This week in 2013, the USTR was trying to defend the TPP following the leak of the IP chapter, by claiming it was the most transparent trade negotiation in history (an announcement made from a Hollywood studio) and telling the lie that it is no different from US law. Then, while Bloomberg was suggesting that the utter lack of transparency could kill the deal, another leak happened and we got to see the copyright maximalist talking points regarding the leaked IP chapter.

Meanwhile, new leaks and declassified documents were giving us more information about the NSA, including more abuse of bulk email collection and the exploitation of pen register statutes, plus a surveillance deal with the UK's GCHQ. The DOJ was resisting the FISA court order to reveal the feds' secret interpretation of the PATRIOT Act, leading the court to demand an explanation. And more internet companies were moving to up their security in response to NSA meddling, with Yahoo working on encrypting all data center traffic and Twitter implementing forward secrecy. There was still a lot of work to do at a lot of companies though, as illustrated by a handy scorecard from the EFF (which would have a lot more checkmarks today than it did then, so I guess we can call that a silver lining to the government compromising tech companies).

Ten Years Ago

This week in 2008, we were beginning to learn more about the soon-to-be-famous Joel Tenenbaum case over the RIAA's music sharing lawsuits, most notably its all-star witness list. At the same time, another racketeering lawsuit was filed against the agency over its threat letters, but we weren't optimistic about it going anywhere. And the RIAA also convinced Tennessee to pass a law forcing universities to filter their networks.

Meanwhile, a judge threw out Psytar's antitrust claims against Apple, a German politician's attempt to block Wikipedia initiated the Streisand Effect, an Australian ISP was agreeing to the government's filtering plan just to collect data on how bad it was, and Nintendo was cruelly trying to prevent the resale of used Wii peripherals.

Fifteen Years Ago

This week in 2003, the war on spam and scams continued, with the House and the Senate reaching a compromise on anti-spam legislation (definitely better than one senator's proposed tax on every email you send), while the DOJ announced that since October it had arrested 125 people for online scamming and other online crimes — though we had some serious questions about that, since they seemed to be flinging a lot of stuff under the umbrella of "cybercrimes" without good reason, such as a guy who replied to spam with angry, threatening emails. Perhaps a better strategy was the newly-emerging sport of 419 baiting.

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Posted on Techdirt - 21 November 2018 @ 6:31am

New White House Press Conference Rules Leave Door Open To Future Challenges

from the doesn't-change-much dept

As you've likely heard by now, the Trump administration has restored Jim Acosta's hard pass for media briefings, and CNN has accordingly dropped its lawsuit, returning the battle between Trump and the media to cold-war-status for the time being. But the White House also took the opportunity to issue new rules for its press conferences which, rather than truly addressing any of the issues that formed the basis of the lawsuit, appear to leave the door wide open for future abuses by Trump and challenges by the press:

(1) A journalist called upon to ask a question will ask a single question and then will yield the floor to other journalists;

(2) At the discretion of the President or other White House official taking questions, a follow-up question or questions may be permitted; and where a follow up has been allowed and asked, the questioner will then yield the floor;

(3) “Yielding the floor” includes, when applicable, surrendering the microphone to White House staff for use by the next questioner;

(4) Failure to abide by any of rules (1)-(3) may result in suspension or revocation of the journalist’s hard pass.

Basically, the White House seems to be setting itself up with the absolute bare minimum framework that it could kinda-sorta claim constitutes viewpoint-neutral due process the next time it wants to kick out a reporter. Functionally the rules don't seem to change much, since who gets the floor at White House press conferences has always ultimately been at the discretion of the person at the podium, but this formalizes the threat of pass revocation for those who don't play nice enough for Trump's tastes. Though many reporters are (rightfully) speaking out against the clear anti-press tone of the rules, and (correctly) pointing out that followup questions are one of the most critical components of good journalism, the reality is that this just puts things in a holding pattern until the next time Trump kicks someone out.

For one thing, the rules don't actually address any of the due process requirements set out in Sherrill v. Knight and expanded on by the judge's TRO restoring Acosta's pass, so the entire fifth amendment question still falls to how these rules get enforced:

The court in Sherrill held that this process must include notice, an opportunity to rebut the government's reasons and a written decision. And ... although the court in Sherrill did not have occasion to address it, when an important interest is at stake and when the government is able to provide this process before deprivation, it generally must do so.

Moreover, simply stating that the president has discretionary power doesn't eliminate the first amendment issue. Again, it will come down to how that power is used — specifically, whether it's used for viewpoint-based discrimination. If there is another incident and another legal challenge, these rules won't change much, and something like CNN's initial first amendment argument could easily still apply:

Defendants' justifications for impeding Plaintiffs' First Amendment rights are hollow and hardly sufficiently compelling to justify the indefinite revocation of Acosta’s White House credentials. Consequently, the only reasonable inference from Defendants’ conduct is that they have revoked Acosta's credentials as a form of content- and viewpoint-based discrimination and in retaliation for Plaintiffs' exercise of protected First Amendment activity.

The sole justification for Defendants’ conduct is their dislike for Plaintiffs’ coverage of the administration and critique of the President. But that is insufficient to justify such a substantial restriction on Plaintiffs’ First Amendment rights.

Meanwhile, in the full statement laying out the new rules, Sarah Sanders laments that they were created with "a degree of regret" and are only necessary because they can tragically no longer rely on "a set of understood professional norms."

If only they cared so much about presidential norms.

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Posted on Techdirt - 18 November 2018 @ 12:00pm

Funniest/Most Insightful Comments Of The Week At Techdirt

from the the-votes-are-in dept

This week, our first place winner on the insightful side is James Burkhardt responding to the idea that the EU Copyright Directive may not have blocked the Wonky Donkey viral sensation because "no one is required to enforce copyright":

Article 13 requires proactive efforts to ensure copyright is not infringed. Article 13 requires Websites to enforce copyright, despite not knowing if content is infringing.

You lie.

In second place, we've got That One Guy making the fair point that our word-choice when describing the cop who lost qualified immunity for shooting a man with his hands up wasn't nearly harsh enough:

There's setting the bar low, and then there's throwing it out

"Officer Minchuk screwed up."

Using the wrong paperwork for something would be an example of someone who 'screwed up'.

Parking in a handicaped zone because you weren't paying attention would be an example of someone who 'screwed up'.

Writing not one but two bogus tickets could possibly be classified as 'screwing up'. (Though the attempt to get paid to make them go away would seem to suggest it was more an attempt to get a quick buck.)

He didn't 'screw up', he attempted to extort someone for money via bogus tickets, assaulted him, attempted to destroy evidence that would contradict his claims, and then attempted to murder someone who had surrendered.

To call that a case of someone who 'screwed up' is to set the bar so low it might as well not exist.

He should not only be stripped of qualified immunity and fired, but charged with assault and attempted murder at the least.

"If officers are justified in shooting surrendering suspects, this leaves arrestees zero options to avoid being shot. That's an obviously ridiculous outcome."

More than 'ridiculous' it's dangerous, to the police. Basic psychology is that desperate people are more willing to take extreme actions if they feel they need to, making even otherwise peaceful people much more likely to fight, possibly to the death.

If people come to believe that surrendering to the police has good odds of getting them killed then they are going to be much more likely to do everything they can to escape, up to and including attempting to shoot if not kill the officer(s) in question, and that's not a good outcome for anyone sane.

For editor's choice on the insightful side, we start out with one more response from James Burkhardt, this time to a confusing argument that Facebook's content moderation failures are somehow linked to it being not eager enough to kick people off the platform:

How does facebook's unwillingness to kick people off the platform have anything to do with Facebook's unwillingness to be transparent about why they removed content, potentially leading to loss of members, and the EFF proposing a solution?

Next, it's an anonymous response to every Trump apologist insisting there is obviously no legal basis to CNN's lawsuit:

Except, you know, the dozen legal citations provided in the article.

Over on the funny side, our first place winner is Killercool, who had to apply some real outside-the-box thinking to defend Denuvo:

It's obvious!

Since the DRM was broken before release, any sales lost because of it are negative losses! Therefore, if my calculations are correct, Denuvo has saved the company eleventy billion dollars in lost sales.

Hitman 2 is now the best selling game of all time.

In second place, it's Thad being very unsurprised about one particular defense of Trump kicking out Jim Acosta:

Who had "but Obama" on their Bingo card?

For editor's choice on the funny side, we've got an anonymous response to yet another common-but-stupid take on the CNN lawsuit — that Acosta wasn't actually asking important questions:

Damn straight! He should be asking the things the public wants to know, nay NEEDS to know...like "what's Trump's favorite color?", or "how great are North Korea's beaches really?"

Anything else is just grandstanding or partisan hacking. Let's ask the questions middle 'Murica is really concerned about.

And finally, we've got an anonymous commenter with some simple brand consultation for Denuvo:

They could change their name to Titanic.

That's all for this week, folks!

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Posted on Techdirt - 17 November 2018 @ 12:00pm

This Week In Techdirt History: November 11th - 17th

from the then-and-now dept

Five Years Ago

This week in 2013, we learned more about the UK's GCHQ and its use of a packet injection attack to hack an internet exchange, garnering a combined response of "no comment but by the way that would be totally legal" from the agency. John McCain said in an interview that Keith Alexander should be fired (for the wrong reasons) then nonsensically denied the comments. And while the author of the PATRIOT act was telling the EU Parliament that the NSA is out of control, some people were looking at the agency's customer list and noticing that its denials of economic espionage were suspect at best.

Meanwhile, this was also the week that the the TPP's IP chapter leaked for the first time, and it was as bad as expected (and even worse than ACTA). Law professors called on Obama to open up the TPP process while Congress was showing signs of being a bit more reluctant to grant fast track authority, and perhaps the most nefarious part of the chapter was its attempt to make copyright reform impossible.

Ten Years Ago

This week in 2008, broadband providers were rolling out usage caps and patronizingly advertising the number of emails that could be sent under the limits, while the industry's apologists pushed the narrative that there was a growing bandwidth crunch (there wasn't). The EU was giving bogus excuses for keeping ACTA secret while another bad copyright deal, the Broadcasting Treaty, was apparently coming back from the dead again. China officially recognized the concept of internet addiction and it was quickly used as a defense in a murder trial. And the FBI's expensive crusade to catch the leakers of the Guns N' Roses album Chinese Democracy ended ignominiously with a blogger pleading guilty to a misdemeanor.

Fifteen Years Ago

This week in 2003, as we marked the 20th anniversary of the computer virus, and internet advertising started recovering from an early collapse, it was beginning to look like a lot of '90s promises about the internet were beginning to arrive, just a little late. Not every offering was impressive, of course, such as Sprint's introduction of TV on mobile phones... at two framers per second. People were blaming Microsoft for the failure of one new product category that wouldn't take off until Apple stepped in several years later: tablet computers. But there was also a new, curious and exciting trend on the rise, referred to sometimes as "social software" and sometimes "social networking". As you know, it never really took off.

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Posted on Techdirt Podcast - 13 November 2018 @ 1:30pm

Techdirt Podcast Episode 189: What The Hell Is Initiative Q?

from the many-Qs-few-As dept

By now, there's a good chance you've received an invitation to join Initiative Q, and also a good chance that you took one look at it and thought "wow, this seems extremely sketchy." And indeed, there's little reason (other than hopefulness) to see the strange new proposed payment system as anything but a pyramid scheme. But it's got people talking, thanks in no small part to its viral marketing scheme, so this week's episode is all about trying to figure out just what Initiative Q really is.

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

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Posted on Techdirt - 11 November 2018 @ 12:00pm

Funniest/Most Insightful Comments Of The Week At Techdirt

from the so-they-say dept

This week, our first place winner on the insightful side is That One Guy with an understandably frustrated call for better penalties when cops abuse their power such as the bogus case against a Nevada man recently dismissed by the courts:

'No offloading this to the city, YOUR wallet's on the line.'

If the case is so blatantly, obviously corrupt that the court is willing to state flat out that it's clearly vindictive, sure would be nice if any penalties levied out were levied personally, rather than just another case of 'Let's screw the taxpayers while the guilty party walks.'

Everyone involved, up to and including the judge, should be hit with a hefty financial penalty for their actions here, one directed at them personally. Anything less and the court will once again be making it clear that 'personal responsibility' and 'penalties for abuse of power' are for the little people, and don't apply to those with badges or robes.

In second place, it's an anonymous response to a commenter making the absurd claim that the Mueller investigation "hasn't gotten anywhere near Trump":

Correct. Zero indictments of anything related to Trump.

George Papadopoulos, former Trump campaign foreign policy adviser (aka coffee boy)

Paul Manafort, Trump’s former campaign chair (aka coffee boy)

Rick Gates, a former Trump campaign aide and Manafort’s longtime junior business partner (aka coffee boy)

Michael Flynn, Trump’s former national security adviser (coffee boy)

13 Russian nationals and three Russian companies (coffee suppliers)

Richard Pinedo (got caught making coffee wrong)

Alex van der Zwaan (Rick Gates' coffee boy)

Konstantin Kilimnik, longtime business associate of Manafort and Gates (coffee boy)

12 Russian GRU officers (coffee boys)

Michael Cohen, Trump’s former lawyer (coffee boy)

Sam Patten, A GOP lobbyist who had worked in some of the same Ukrainian circles as Manafort and alongside Konstantin Kilimnik (coffee boy)

All just coffee-related workers, fetching, pouring, and delivering coffee. Persecuted because fuck coffee.

For editor's choice on the insightful side, we start out with Agammamon posing a question to DRM-peddlers:

Someone should ask the Denuvo guys "if each stolen copy is a lost sale, then how come no one made massively more money when you rolled out Denuvo? How come the sales needle barely twitched? In all the years that you've been 'protecting' that release window, how come titles with DRM aren't seeing massively more sales than titles without?"

Along similar lines, we've got PaulT responding to complaints about streaming service password sharing:

"It's people consuming something they haven't paid for."

No, it's not. Your customer has paid to have streaming to their devices. The product is paid for. You don't get to be paid multiple times for the same service because you don't like the way people use it.

If I buy a DVD and then let someone else watch my copy when I've done with it, that doesn't mean that a copy has been pirated. If I give my copy of a newspaper to the next guy in the break room, that doesn't mean a publisher is owed money If I let someone use my car while I'm at work, that doesn't mean a rental company is owed money, It's just the way life works.

If you think that it's not, it's no wonder you're seeing failing business, as you're chasing shadows.

""By the content companies going over the top without having the experience of being distributors, they’ve done that in a way without securing their content"

No, they really haven't. You need a valid login to access the content - *somebody* is paying for that access. According to the account, you will be restricted as to how you can access the content, be that which items are downloadable, how many devices or locations can be streamed from at once, etc. The content itself is secured, you just don't like the fact that someone can pay Netflix to have 3 friends access it simultaneously without collecting an extra ransom.

But, they ARE getting paid for that access.

"The reality is television can be had fairly easy without paying for it."

Welcome to... well, both the advent of free to air television before you were born and the reality of the marketplace you're operating in.

Over on the funny side, our first place winner is A Non-Mouse accepting our challenge to insert your own joke about the Satanic Temple's copyright lawsuit against Netflix:

Three copyright trolls walk into a Satanic Temple. Baphomet says "Welcome home!"

In second place, it's an anonymous response to UCLA's latest attack against a critic's website:


Website critical of UCLA adds additional way in which UCLA sucks with evidence courtesy of UCLA.

For editor's choice on the funny side, first up it's ryuugami with another response to Denuvo's "every download is a lost sale" attitude:

Let's be fair, at least they said "potential" loss.

In other news, my potential loss of revenue from not buying a lottery ticket is at $10,000,000 or so. Can Denuvo help me with that?

And finally, we've got a short anecdote from Thad about people who tell celebrities to stay in their non-politics lane:

My grandma once forwarded me an e-mail ranting about how these Hollywood celebrities should shut up and stay out of politics.

It closed with a quote by President Reagan.

That's all for this week, folks!

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Posted on Techdirt - 10 November 2018 @ 12:30pm

This Week In Techdirt History: November 4th - 10th

from the can-we-fix-voting-machines-please dept

Five Years Ago

This week in 2013, UK officials were going a bit nuts in response to the fallout from their detention of David Miranda, first arguing that he was, in fact, a terrorist, then that they didn't know he was a journalist, and then that the Snowden leaks would help pedophiles — leading us to wonder of the State Department would condemn their stifling of journalism (okay, not really wonder...)

Stateside, Mike Rogers was claiming that more NSA transparency would hurt privacy, while also being opportunistically concerned about the privacy implications of the Affordable Care Act. The agency was positively comparing metadata searches to stop-and-frisk, and making a similar argument that curbing metadata protection would harm privacy. And of course the Inspector General was rejecting a request from Congress to investigate the agency, while the Senate Intelligence Committee advanced a bill to give the NSA more funding.

Ten Years Ago

This week in 2008, while we were wondering why the MPAA gets to review and approve DVD players, the Copyright Alliance was fighting to outlaw remote DVRs. A UK ISP was threatening to disconnect anyone who has open wifi, the French Senate approved the three strikes law that would create the infamous Hadopi, and Italian authors were fighting for a piracy tax on DSL connections (while Italian officials were moving forward with criminal charges against Google executives over a user's video).

Today, there's a lot of concern about issues with electronic voting machines and their poor security. Naturally, if people had known about this ten years ago, it would have been fixed by now. Oh, wait...

Fifteen Years Ago

But certainly if we'd known about it all the way back in 2003, it'd definitely be fixed by now, right? It's not like we'd need advocacy groups and law clinics to fight to stop Diebold from C&D-ing people who talk about its security issues, right? Oh...

Well anyway, also this week in 2003, we saw the first big record label merger of the 21st century, with Sony and BMG turning the Big Five into the Big Four. The RIAA was bragging about the success of its lawsuits based on dubious causality, while studies showed they were somewhat effective in making people delete MP3s and really, really hate the record industry.

It was also around this time that the trend of making computers look cool started taking root beyond the world of Apple.

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Posted on Techdirt Podcast - 6 November 2018 @ 1:30pm

Techdirt Podcast Episode 188: Government, Activism & Silicon Valley

from the panel-discussion dept

In late September, Mike joined a panel at the Lincoln Network's Reboot conference to tackle the question "will rising activism limit government’s access to Silicon Valley?" along with Trae Stephens, Pablo E. Carrillo, with moderator Katie McAuliffe. For this week's episode, we've got the full audio from that panel plus an additional introduction from Mike with some thoughts after the fact. Enjoy!

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

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Posted on Techdirt - 4 November 2018 @ 12:00pm

Funniest/Most Insightful Comments Of The Week At Techdirt

from the you-said-it dept

This week, our first place comment on the insightful side comes in response to our post about the ridiculous problems plaguing Texas voting machines. Crade was rightfully appalled:

"Hitting "submit" before it's ready to move forward causes problems with candidate selection"

Any software dev out there calling this user error isn't worth their salt.

In second place we've got Gary with a simple message about the cop being sued for a bogus arrest (with a small typo corrected):

Look and Learn

Every time this happens, it's essential to spread the word. Public awareness is important for keeping the police in line.

Cause they ain't gonna police themselves.

For editor's choice on the insightful side, we start out with James Burkhardt correcting a misunderstanding about our point that our election simulator game highlights how much goes on behind the scenes of public speeches and statements (this doesn't mean people shouldn't vote):

Yeah, that's actually not the point. The point was that a lot of what we see in speeches and debates is not speaking directly to people, but is rather signaling to various other groups.

This doesn't mean your voting choices mean nothing, or not to vote, but rather that this game gives us insight into how to assess candidates better.

Next, we've got


with a response to folks who still believe Bloomberg's supply chain hack story just because it seems like something that would be true:

There's an enormous difference between "the supply chain can be compromised" and "the supply chain has been compromised, in this way, at this time, with these targets." The former is, I think, beyond reasonable question (especially since "can be" is a very low bar). The latter? Not so much.

I haven't made it all the way through the STH piece yet, though it does appear to be very thorough. As a counterpoint, this piece purports to explain how something like this would be possible.

Over on the funny side, our first place winner is an anonymous followup to John Oliver's segment about the political grandstanding of state AGs, and a comment that technically achieved the wrong goal:

Please vote this comment as insightful because I will not steal your pen!

In second place, we've got another anonymous comment, this time parodying the ongoing efforts by big companies to deny and/or fight against cord cutting:

"What?! How are they 'cord cutting' us! It's Satellite! It's wireless! There's no cord to cut!" -AT&T exec

For editor's choice on the funny side, we start out with a comment from That One Guy about the Texas voting machine issues:

'Eh, accurate voting isn't that important really.'

The Democratic Party is blaming the government for not doing more, which is a very Democratic Party thing to do. In this case, the Republicans are in control of the state and the Democratic Party has chosen to claim the Republicans don't care enough about the problem.

Come now, that's a bit hyperbolic isn't it? I mean I'm sure they are taking the matter seriously and are deeply concerned that votes might end up going to the wrong people. It's not like they're going to just handwave something as large as bogus votes during an election or anything...

The state's government has pointed out e-voting machines only need to comply with state laws, not actually be accurate and/or idiot-proof. It points to the voting machines' certification -- which last happened nearly a decade ago -- as evidence that the bare minimum requirements have been met.

... huh. You know, they may be on to something in this case after all.

One does have to wonder if they'll be singing the same tune should the democrat candidate win, or if suddenly potential 'bogus' votes will be of huge concern, leading to calls to redo the election.

And finally, because it's a joke that speaks to me in a powerful way (and many other users too, I'm sure), we've got an anonymous take on the "broken windows" fallacy:

Is that where every time I attempt to run Windows 10, it decides to do an update instead?

That's all for this week, folks!

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Posted on Techdirt - 3 November 2018 @ 12:00pm

This Week In Techdirt History: More NSA Madness

from the closer-look dept

Five Years Ago

The ongoing fallout of the Edward Snowden leaks heated up again this week, so we're taking another break from the five/ten/fifteen-year retrospective to dig into what happened this week in 2013.

The feds had waited until late the previous Friday to quietly release details of a criminal case that used information from NSA surveillance, but this news was quickly overshadowed by new leaks showing the NSA had collected millions of phone records in Italy and Spain, in addition to the previous revelations about France, and of course about spying on world leaders. Speaking of which, Obama was denying that he knew anything about the NSA spying on Angela Merkel's phone, and was apparently quietly telling the NSA to quit spying so much on the UN (or perhaps just quit getting caught). The Merkel scandal was threatening to scuttle the TAFTA/TTIP negotiations, while the NSA was apparently pretty furious at the administration for denying knowledge — and Mike Rogers was insisting Congress knew about it to, and attacking (with video!) the lawmakers who said that wasn't the case. As for the European bulk collection targets, Mike Rogers was saying they should be thrilled that the US is helping to keep them safe, though it later turned out that those countries' own intelligence agencies were heavily involved. This was one of many conflicting messages though, with the NSA constantly revising its own exact position.

Congress, however, was trying to push back, with a bill that would stop the worst of the NSA's excesses. They had no ally in Dianne Feinstein though — she started preparing another bill that would largely codify current practices, then later decided she had changed her mind and agreed the NSA had gone too far, leading NSA officials to admit they were screwed... except then she released her bill anyway and, as expected, it looked like it might even make it easier for the NSA to spy on people.

Of course, there was still more to learn about the NSA this week. James Clapper begrudgingly declassified documents that showed the NSA believed it could spy on everyone's location data based on existing approvals (something they had previously denied they do at all). And then the latest realization from the Snowden docs: the NSA had infiltrated Yahoo and Google servers without the companies knowing. Keith Alexander was on stage at an event while the story broke, and quickly cooked up a misleading response that was later formalized with an official non-denial from the agency. While people tried to figure out how the NSA pulled it off, we figured there was one small silver lining: some tech companies were finally starting to realize they should oppose the NSA.

Believe it or not, that's not even every NSA post from this week in 2013, but it's the important news. As a final note, the creator of a parody NSA t-shirt also sued the agency over the legal threats it was sending to him.

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Posted on Techdirt Podcast - 30 October 2018 @ 1:30pm

Techdirt Podcast Episode 187: AI, Free Speech & Human Rights

from the big-implications dept

As artificial intelligence technology marches onwards, it's raising a lot of complicated questions about free speech, privacy, and important rights. One person who's been thinking a lot about these questions is David Kaye, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, who recently published a thorough report [pdf] on the subject. This week, David joins us on the podcast to discuss artificial intelligence and its implications for human rights.

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

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