We've argued for a long, long time that these automated copyright takedown bots that far too many media companies utilize are both broken and illuminate just how broken copyright takedown policies for streaming sites have become. The output of this broken system is shown when these bots take down totally legitimate content or when grifters abuse the system to try to take some measure of income away from small third-party streamers. But attempts at machine-based copyright enforcement are truly at their most satisfying when content companies employing these bots commit unintentional copyright seppuku.

This happens way more than you might think, but the latest version of this is Viacom briefly nuking its own Star Trek Comic-Con panel when the copyright borg misfired.

The panel included the cast and producers of Discovery doing a read-through of the first act of the season 2 finale, "Such Sweet Sorrow, Part 2." The "enhanced" read-through included sound effects, effects shots, and storyboard images meant to bolster the actors as they delivered lines from their living rooms and home offices.

Even if the presentation didn't look like a real episode of Discovery to the home viewer, it apparently sounded close enough: after the Star Trek Universe virtual panel began viewers began to lose access to the stream. In place of the video, YouTube displayed a content ID warning reading: "Video unavailable: This video contains content from CBS CID, who has blocked it on copyright grounds.

While it's fun to laugh at the notoriously protective CBS for killing off its own stream, the reality is that even these instances are immensely frustrating. The fact is that instances like this should serve as an indication to CBS that something is very wrong with how it's operating when its attempts at copyright protection result in its own promotional material getting taken down, however briefly.

But the introspection never comes, changes are never made, and instead CBS goes on its merry way likely shitting out mistaken copyright enforcement at plenty of others. I'd say that it at least gives me items to write about, but I don't want to. The fact is that the system is broken, everyone knows it's broken, and we have yet to even begin doing anything about it.

In fact, these automagic filtering systems are in such wide use that this same stream has to be unblocked by more parties as well.

Unfortunately, it seems an array of media companies are each going to have to rush to correct the error in turn: two hours later, io9 reporter Beth Elderkin tweeted that a Cartoon Network panel livestream was pulled offline due to a copyright claim from Turner, Cartoon Network's parent company.

Again...broken. Beyond repair. And yet we're not going to even try to fix it, because something something protecting the artists.

A very interesting decision [PDF] has been handed down by the Fourth Circuit Court of Appeals. It not only addresses what constitutes exigent circumstances, but also attacks predictive policing as nothing more than a tool law enforcement uses to enforce a racist status quo.

The decision is long. It has four(!) concurrences and two dissents. Three of the concurrences attack the dissent written by Judge J. Harvie Wilkinson, who believes not giving the government what it asked for blunts officers' ability to police high-crime areas.

Here's the Appeals Court's final ruling, which details the events leading to this challenge, as well as its outcome.

This appeal presents the question of whether the Fourth Amendment’s exigent circumstances doctrine justified the suspicionless seizure of Defendant-Appellee Billy Curry, Jr. The police seized Curry after responding to several gunshots that were fired in or near an apartment complex less than a minute earlier. When the police arrived, they encountered five to eight men—including Curry—calmly and separately walking in a public area behind the complex, away from the general vicinity of where the officers believed the shots originated; several other people, likely visitors or residents, standing around closer to the apartments; and another man walking toward the rear of the officers’ patrol car, who appeared to be favoring one of his arms.

The district court held that exigent circumstances did not justify the suspicionless, investigatory stop of Curry, and so it granted his motion to suppress a firearm and other evidence based on the unreasonableness of the seizure that led to its discovery. We agree with the district court’s conclusion. To hold otherwise would create a sweeping exception to Terry v. Ohio, 392 U.S. 1 (1968).

The government first argued this was a permissible Terry stop supported by reasonable suspicion Curry had something to do with the fired shots officers were notified about. It abandoned that argument during its appeal, admitting the officers had no articulable suspicion. Instead, it relied on the exigent circumstances exception to the Fourth Amendment. In essence, the government argued officers can stop and search anyone in an area they believe a crime has occurred. Not so, says the Fourth Circuit.

The exigent circumstances doctrine typically involves emergencies justifying a warrantless search of a home, not an investigatory stop of a person, and the few cases that have applied the doctrine in the investigatory seizure context are materially distinguishable. In those cases, the government isolated a discrete area or group of people and engaged in minimally intrusive suspicionless searches in an effort to search for a suspect implicated in a known crime in the immediate aftermath of that crime. Requiring such suspicionless seizures to be narrowly targeted based on specific information of a known crime and a controlled geographic area ensures that the exigency exception does not swallow Terry whole. Because these limiting principles were wholly absent from Curry’s stop, we hold that the stop was not justified by exigent circumstances and thus was not reasonable under the Fourth Amendment.

Judge Wilkinson's dissent starts out promising enough:

We face again in this day of sad and unhappy truths the divide between what are already two Americas.

But then devolves into pro-law enforcement, anti-Fourth Amendment rhetoric:

In one America, where citizens possess the means to hire private security or move to safer neighborhoods, the impact of judicial barriers to effective law enforcement may be minimal. In another America, though, people have no choice but to endure the unintended consequences of our missteps, as crime moves to fill the vacuum left by the progressive disablement of the law’s protections. These repercussions, moreover, serve as reminders of the fact that only a segment of this country, the least fortunate among us, ends up shouldering the weightier burden when our branch of government oversteps its proper role.

Wilkinson's argument is this: to properly police areas where crime is common, the government must be allowed to "overstep its proper role." And this side of the "two Americas" should just be willing to exchange part of their rights for greater law enforcement efficiency. This tradeoff begins with predictive policing, which relies on biased input to make biased decisions about where police should focus their proactive efforts. This means entire neighborhoods and everyone in them are treated like criminals until they can prove otherwise to the police officer accosting them. Wilkinson thinks this is a good thing and says the limitation on exigent circumstances applied here undercuts law enforcement's ability to treat hundreds of people like criminals. Predictive policing put these officers near the scene of the shooting, allowing them to respond within seconds. That they responded unconstitutionally doesn't appear to bother Judge Wilkinson.

It is hard to see how this innovation [predictive policing] can continue under the majority’s conception of the Fourth Amendment. Indeed, the sole practical takeaway from the majority opinion is that police officers on the scene of an unfolding emergency must sit and wait for identifying information, rather than use discretion and judgment to get control of a possibly deadly event, lest the prevention of a homicide violate the Constitution. This injunction entirely saps predictive policing of its potency, and effectively forecloses the tradeoff— faster responses for fuller information—that innumerable cities have opted for in making their streets safer. This is a mistake.

The ends justifies the means, according to this judge. Wilkinson seems to believe many US citizens would welcome the chance to be proactively viewed as criminals. But the Fourth Amendment stands in the way of this privilege.

Is predictive policing the answer? Is it presumptively too injurious to individual rights in affected areas? Richmond has not been spared the mix of peaceful protests and violent outbreaks evidenced throughout the nation, and I hardly know what might begin to heal this divide. I know only that communities deserve the chance to give predictive policing a try.

Wilkinson suggests the Fourth Amendment can be altered at the state and local level to allow officers more leeway to serve the public by violating the rights.

The Fourth Amendment—and the “reasonableness” standard at the heart of it—is hardly inconsistent with our federalism. States and localities, many of them majority-minority, can choose within “reason” what law enforcement strategies work for them. Their latitude is not infinite, but latitude there is.

This bizarre blessing of Constitutional rights violations by Judge Wilkinson is greeted by three stinging concurrences that spend most of their runtime attacking his dissent. The first is written by Chief Judge Roger Gregory, a Black man (Wilkinson is white), and it is merciless.

When I read the first line of Judge Wilkinson’s dissent I was heartened by the thought: well, at least he acknowledges that there are “two Americas.” But this glint of enlightenment was to serve as a “soap box” for his charge against the majority’s decision. It is understandable that such a pseudo-sociological platform was necessary as his assertions are bereft of any jurisprudential reasoning. More to the point, his recognition of a divided America is merely a preamble to the fallacy-laden exegesis of “predictive policing” that follows. Through his opinion, my colleague contributes to the volumes of work gifted by others who felt obliged to bear their burden to save minority or disadvantaged communities from themselves.

Judge Gregory says subtracting Constitutional protections and adding more cops isn't going to make communities like these feel any more safe.

[W]e know that many of our fellow citizens already feel insecure regardless of their location. In a society where some are considered dangerous even when they are in their living rooms eating ice cream, asleep in their beds, playing in the park, standing in the pulpit of their church, birdwatching, exercising in public, or walking home from a trip to the store to purchase a bag of Skittles, it is still within their own communities—even those deemed “dispossessed” or “disadvantaged”—that they feel the most secure. Permitting unconstitutional governmental intrusions into these communities in the name of protecting them presents a false dichotomy. My colleague insists on a Hobson’s choice for these communities: decide between their constitutional rights against unwarranted searches and seizures or forgo governmental protection that is readily afforded to other communities.

He then points out that the predictive policing Judge Wilkinson lauds -- the software that put officers on the scene of a potential shooting within seconds -- didn't do anything to improve the quality of the police work.

From this perspective, the video of the present incident mimics the aggressive, discourteous, and ineffective policing that concern many. As the officers approached the scene seconds after gunshots rang out, the members of this community, including Curry, pointed them in the direction in which the perpetrator was likely to be found. Because, as Judge Diaz notes in his concurrence, it would have been difficult for the officers “to determine whether any firearm (which, of course, are generally lawful to possess) seized in the effort to identify the suspect was the source of the gunfire,” one would think that the officers’ best hope for finding the shooter was to accept the guidance offered by community members. That, of course, was not the case here. The officers ignored the assistance and the shooter got away. Like most citizens, it is likely that residents of the Creighton Court community do not want police officers to be tough on crime, or weak on crime—they want them to be smart on crime.

The immolation of Wilkinson's dissent continues in the second concurrence -- one that also questions what the judge was thinking when he decided people in high-crime areas should be treated as second-class citizens when crime is being investigated.

While Judge Wilkinson agrees “that the phrase ‘high-crime area’ cannot serve as a facile excuse for indiscriminate interventions,” I am puzzled that in the next sentence, he advocates doing just that by stating, “neither can skepticism toward the preventive potential of predictive policing in violent crime locales allow us to deny its benefits ab initio to communities that might welcome them.” Wilkinson Dis. Op. at 67. Justifying predictive policing on the policy basis that neighborhoods—whether termed “violent crime locales” or “high-crime areas”—“might welcome [it]” still results in the citizens of those communities being accorded fewer constitutional protections than citizens of other communities, as the police accept Judge Wilkinson’s proposed tradeoff: “faster responses for fuller information.” Id. Such an outcome fails as a matter of law. We may not treat citizens as second-class simply because they live in areas that my good colleague calls “violent crime locales.”

The second concurrence reminds Judge Wilkinson of the court's place in the grand scheme of things. It's supposed to be a check against government overreach, not an enabler of Constitutional violations.

[O]ur analysis must stay rooted in constitutional principles, rather than turn on naked policy judgments derived from our perception of the beneficial effects of novel police techniques

It also states something overlooked entirely in the second dissent: there are more Amendments in play here than just the Fourth.

People of course have a right to own firearms. And sometimes firearms are discharged near others, whether deliberately or accidentally. If anybody in the vicinity of gunfire can be stopped without reference to any of the Fourth Amendment’s protections, it follows that those protections apply with lesser force to those who own guns and discharge them—and to those who are merely within earshot. And unless we wish to limit such a diminution in constitutional safeguards to those in high crime areas—which we cannot, and should not, do—Judge Richardson’s reasoning would apply with equal force to both economically disadvantaged public housing communities like Creighton Court and wealthy suburban gated complexes.

The fourth concurrence -- written by Judge Thacker and Judge Keenan -- is equally as harsh in its assessment of Wilkinson's attempt to stretch exigent circumstances to cover the search of anyone in the general location of a suspected criminal act.

I am compelled to write this separate concurring opinion only in response to the dissenting opinion authored by Judge Wilkinson, who writes today with a smooth pen and a tin ear. Judge Wilkinson’s dissenting opinion accuses the majority members of our court of all but dismantling the rule of law and of “overstep[ping our] proper role.” Wilkinson Dissenting Op., post at 63. I cannot sit silent in the face of Judge Wilkinson’s dissent. In my view, the use of predictive policing, which Judge Wilkinson endorses, is little more than racial profiling writ large.

Wilkinson's touting of predictive policing (and its apparent attendant reduction of civil liberties) is just as awful as the law enforcement miracle he believes at-risk communities are dying to have inflicted on them.

Over time, predictive policing has been shown to be, at best, of questionable effectiveness, and at worst, deeply flawed and infused with racial bias.

[...]

Technology cannot override human flaws. It stands to reason that any computer program or algorithm is only as good as the data that goes into it. In the computer science arena, this is known as “GIGO” (garbage in, garbage out); flawed data input produces nonsense output. In predictive policing, GIGO is a real concern because “hot spot policing,” which utilizes historical crime data to predict future crime hot spots, can be infected with years of racial bias. Because “historic crime data is biased through the practice of racialized enforcement of law, predictive policing will inherently reinforce and perpetrate this structural racism.”

Finally, there's an agreement of sorts:

I note that Judge Wilkinson and I agree on one point. “If change is to occur, part of the obligation must lie with police themselves, and the essential efforts they must daily make to earn the trust of their communities and prove themselves responsible stewards of their power.” [...] Thus, to achieve this result, we must never lose sight that it is individual police officers, not a computer program, who abuse their authority by violating the constitutional rights of citizens such as Billy Curry, based on the simple fact that they committed the offense of “walking while black.” No fact in this case ever suggested Billy Curry’s involvement in the commission of the crime under investigation. And the majority’s enforcement of his constitutional rights is the shield that will protect him and others from the bleak future imagined by Judge Wilkinson.

How a discussion of an unconstitutional stop and frisk turned into a spirited defense of one of the worst law enforcement tech developments of the last half-century is something only Judge Wilkinson can fully comprehend. As for most of the rest of the Appeals Court judges, the willingness to cast aside rights in exchange for law enforcement efficiency is truly -- and horrifically -- inexplicable. Some judges may secretly desire a more police-state-ish existence… at least for some American citizens. Fortunately, the rest of the court isn't having it. The Fourth Amendment lives.

About a month or so ago on the radio program Fresh Air, host Terry Gross spoke to epidemiologist Michael Osterholm from the University of Minnesota about a variety of topics related to the pandemic. It's an interesting discussion, and one part stood out: he complained about the term "social distancing" arguing that the phrase "social distancing" was misleading since it suggested not being social with others.

"It's physical distancing. ... Don't socially distance. If there was ever a time when we all need each other, it's now," he says. "We need to start an epidemic of kindness right now to take on this pandemic of this virus."

And it is kind of incredible, but I've noticed how technology has really made this possible. Despite the fact that I've seen almost no one besides my immediate family in person for months now, I've been able to connect with plenty of friends and family virtually that I probably wouldn't have spoken to otherwise. I grew up with a close knit group of cousins who were all relatively close in age, but they all still live in and around the NYC region. Normally, I only get to see them if I happen to be in NY, but they all still would get together semi-regularly. But a few weeks back, we organized a virtual get together on Zoom, and were able to catch up as if we were together. Similarly, I'm currently organizing a Zoom call for a bunch of my old housemates from college. I catch up with them every so often (not that often, honestly), but now we're going to all try to get together on a Zoom call and catch up -- something that likely wouldn't have even happened if we weren't all stuck at home during the pandemic.

Almost everyone I know has had similar stories. I know people who have had family reunions on Zoom, or reconnected with old work teams. I saw another amazing example recently as well. The science fiction author Eliot Peper -- who's been on our podcast -- has talked about how he's Zooming into book clubs to discuss his new book Veil, and that seems like a really cool thing that authors can do these days that actually allows them to connect to more fans and readers in an easier way than if everyone were going about their lives as normal.

We're still being social -- just at a physically distant, technologically enhanced way. And, no, of course it's no replacement for the high fidelity of actually being together in person, but it is still a really cool way to connect socially, and the fact that we probably wouldn't even be doing these gatherings if it weren't for the pandemic strikes me as quite fascinating. Obviously, everything in the world connected to the pandemic absolutely sucks right now -- but imagine how much worse things would be if we didn't have technology allowing us to socially connect, while remaining physically distant.

Even here at Techdirt, we're exploring some other new ideas for creating events. Over the years, we've done physical events, but they're a ton of work (and expense) to pull off well, and it's always been difficult to focus enough resources on doing them consistently. But, now that everyone's locked down, we're thinking we may have some more creative ways to start doing fun, creative events virtually as well, and allowing more people to connect, since we're not so restricted by geography any more (so stay tuned).

There are plenty of things to be concerned about in the state of the world today, but I remain grateful for how technology and what it allows has actually enabled lockdown/quarantine to be less horrific than it otherwise may have been, and a big part of that is our ability to socialize virtually, even if we must remain physically distant.

A surge of federal agents swept into Portland, Oregon in response to ongoing protests in the city. The city hadn't asked for federal help, but help arrived anyway. And it wasn't much help. The blend of federal agents -- drawn from the CBP, US Marshals Service, and ICE -- rolled onto the streets in unmarked vehicles. Out of these vehicles sprang agents dressed like soldiers, wearing no markings clearly identifying the officers or the agency they represented. Residents were taken off the street to unknown locations for questioning. They were later released and given no paperwork that informed them who had detained them or for what reason.

This federal intervention was immediately greeted by several lawsuits, including one filed by Oregon's Department of Justice. One set of plaintiffs has already secured a temporary restraining order against the federal government. (h/t Mike Scarcella)

Portland journalists sued the DHS -- along with the Portland Police Bureau, US Marshals Service, and the city itself -- over attacks on journalists and neutral observers by law enforcement officers. The federal agencies were added to the lawsuit shortly after they added themselves to mix in early July.

The court has granted the restraining order, finding that the government's actions pose a threat to multiple Constitutional rights. There's a history of violence against journalists by federal agents, detailed here in the court's order [PDF].

On July 15, 2020, Plaintiff Justin Yau, while carrying photojournalist gear and wearing clothing clearly identifying him as press, asserts that he was targeted by a federal agent and had a tear-gas canister shot directly at him. At the time he was fired upon, he was taking pictures with his camera and recording with his cell phone while standing 40 feet away from protesters to make it clear that he was not part of the protests. In addition, late July 19th or early July 20th, Declarant Nathan Howard, a photojournalist who has been published in Willamette Week, Mother Jones, Bloomberg Images, Reuters, and the Associated Press, was covering the Portland protests. He was standing by other journalists, and no protesters, as federal agents went by. The nearest protester was a block away. Mr. Yau held up his press pass and repeatedly identified himself as press. A federal agent stated words to the effect of "okay, okay, stay where you are, don't come closer." Mr. Yau states that another federal agent, who was standing immediately to the left of the agent who gave Mr. Yau the "okay," aimed directly at Mr. Yau and fired at least two pepper balls at him at close range.

Declarant Jungho Kim is a photojournalist whose work has been published in the San Francisco Chronicle and Ca/Matters, among others. He wears a neon yellow vest marked "PRESS" and a white helmet marked "PRESS" in the front and rear. He has covered protests in Hong Kong and California. He has experience with staying out of the way of officers and with distinguishing himself from a protester, such as by never chanting or participating in protest activity. He had never been shot at by authorities until covering the Portland protests on July 19, 2020. During the protest, federal agents pushed protesters away from the area where Mr. Kim was recording. He was around 30 feet away from federal agents, standing still, taking pictures, with no one around him. He asserts that suddenly and without warning, he was shot in the chest just below his heart with a less lethal munition.Because he was wearing a ballistic vest, he was uninjured. He also witnessed, and photographed, federal agents firing munitions into a group of press and legal observers.

Unbelievably, the federal government testified that it was unwilling to cease its violent acts towards journalists.

The Federal Defendants intend to keep dispersing journalists and legal observers. See ECF 67 at 20 (arguing that allowing journalists and legal observers to remain "is not a practicable option"). The actions by the federal agents described by Plaintiffs are part of a pattern of officially sanctioned conduct. The Federal Defendants argue that such conduct is necessary to protect federal property.

The government is begging for a restraining order and the court is more than willing to oblige. As it points out, the government is basically saying it is going to continue to do harm to people exercising their rights.

Plaintiffs, however, are not breaking any laws -- to the contrary, they are engaging in constitutionally protected First Amendment activity. It is one thing to ask citizens to obey the law in the future to avoid future alleged harm. But it is quite another for the Federal Defendants to insist that Plaintiffs must forgo constitutionally protected activity if they wish to avoid government force and interference.

Here's another one of the government's rejected pitches: let us violate their rights and they can sue us later. Not an option, says the court.

The Federal Defendants also argue that Plaintiffs have legal remedies available, such as bringing a civil rights action or a lawsuit under the Federal Tort Claims Act, and thus a forward-looking equitable remedy is not appropriate. Backward-looking claims for money damages, however, would not provide the relief Plaintiffs are seeking. Plaintiffs desire access and the ability to exercise their First Amendment rights to observe and report on government misconduct.

Every one of the federal government's arguments fail here. And for very good reason: every argument sucks. The court knocks them down one-by-one.

The Federal Defendants argue that Plaintiffs have an alternative location, because they can watch from a few blocks away. This argument is without merit. Federal agents are using tear gas, which decreases visibility, and the protests are at night. Reporting from a few blocks away is not a viable alternative location.

The Federal Defendants also argue that closure is essential because allowing some people to remain after a dispersal order is not practicable and is unworkable. This argument is belied by the fact that this precise remedy has been working for 21 days with the Portland Police Bureau. Indeed, after issuing the first TRO directed against the City, the Court specifically invited the City to move for amendment or modification if the original TRO was not working, or address any problems at the preliminary injunction phase. Instead, the City stipulated to a preliminary injunction that was nearly identical to the original TRO, with the addition of a clause relating to seized property. The fact that the City never asked for any modification and then stipulated to a preliminary injunction is compelling evidence that exempting journalists and legal observers is workable.

And there it is: federal officers are blocked from arresting or physically harming reporters and observers. Reporters are not bound by orders to disperse. The government is forbidden from seizing any recording equipment unless the person is suspected of a criminal act. And if it does that, there's a long set of rules for how seizures must be documented and what steps must be followed before the government can gain access to the content of seized devices.

This is probably the best part of the entire order -- something that makes it clear federal officers aren't going to get away with playing dumb when they start violating reporters' rights.

Because the Court considers any willful violation of this Order, or any express direction by a supervisor or commander to disregard or violate this Order, to be a violation of a clearly established constitutional right and thus not subject to qualified immunity in any action brought against any individual employee, officer, or agent of the Federal Defendants under Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971), notice of this Order must be widely disseminated.

The government may be rethinking its "well, they can just sue for rights violations" argument. Walking into a lawsuit effectively naked is no federal officers' idea of a good time. For the foreseeable future, the federal government will have to play by the rules it set: respecting the rights it supposed to be guaranteeing.

In February, we wrote about how a patent troll, Voice Tech, had sued a small open source voice assistant company, Mycroft AI, claiming infringement. Mycroft AI and its founder/CEO Joshua Montgomery had put up a blog post about the situation, which attracted our attention, in part due to his willingness to call out trolling for trolling, and promising not to back down. It included some strong language, including:

I don’t like letting these matters go quietly. In my experience, it’s better to be aggressive and "stab, shoot and hang” them, then dissolve them in acid. Or simply nuke them from orbit, it is the only way to be sure.

There was certainly precedent for Montgomery to take this kind of stance. In the past, we've highlighted how Newegg's "we never settle with patent trolls" approach had been quite successful. And, more recently Cloudflare's similar approach had been successful as well. Standing up to patent bullies is important in not letting them get away with such shenanigans.

In April, we wrote about the case again, after seeing one of the troll's lawyers, Tod Tumey (who had also sent the original threat letters to Mycroft AI), submitted one of the oddest filings we've seen in court. It was "Suggestions in Support of Motion for Relief to Require Decorous and Civil Conduct by the Parties." In it, Tumey made the wholly unsubstantiated case that Mycroft and Montgomery had engaged in threatening behavior towards Tumey, had tried to hack his website, and more. As we noted at the time, there was no evidence whatsoever to support this. The story had gone viral on Reddit, and the likely result of that being that some immature Reddit users did some immature things, sending Tumey some angry emails and signing him up for some mailing lists. There was no reason to believe they were coming from Montgomery himself.

In fact, Montgomery directly denied having anything to do with any of that. He later filed a declaration with the court to that effect as well. However, after oral arguments a week after my blog post, the judge in the case made a somewhat surprising order from the bench (after mentioning my blog post!?!?), telling Mycroft that it needed to edit its original blog post to take out some of the more incendiary language.

THE COURT: All right. Here is where the Court is landing. In your Exhibit 5 to your opposition in your document 20, in that exhibit, it is a posting by Techdirt. And one of the sentences in that writing -- the paragraph begins with, As Tumey recounts, the various angry, immature, internet trolls then did a bunch of other mean stuff to Tumey, such as signing him up for mailing lists. This is, again, childish behavior, but it's kind of what often happens when you do something stupid and the internet finds out about it.

And I find that there is sufficient evidence that the harassment that plaintiff's counsel has received is induced or inspired by the postings of Mr. Montgomery. In particular, the initial blog posting on February 5th where his -- the posting is, basically, I want you to do something for me. And he says, I'd like -- I don't often ask this, but I'd like for everyone in our community to share the post in any which way they can. And so that is what -- he is calling folks into action to get the word out.

And then as he describes and educates the readers as to what a troll is, then he explains what their internal policy -- how they're going to combat this. And he describes it in equating plaintiff as a bully and the language of punching a bully in the face; stab, shoot, hang them; and dissolve them in acid; and nuke them from orbit; and that he is turning into a hunter, a troll hunter. I think that even though he may not be directly the source of the harassment, his actions are foreseeable and that that is what would happen based on his conduct.

So I am going to order, at least for the pendency of this case, or until ordered otherwise, for defense to assertively take down the sentence that begins with "I don't often ask this," to delete that portion until the section where "a brief history of patents in the United States." I'd also order defense to assertively search and take down in those similar -- whether it's Facebook or blogs or whatever, the remainder of the writing beginning with "the thing is, once you pay the bully, he just comes back again and again and again." And so from that sentence -- that can stay in, but where it begins with "Eventually, the lunch money adds up to a lot more than a doctor's visit." From "eventually" until the end of that posting, for that to be deleted. And I do -- I'm not asking that all that blog be taken down, just those sections

Mycroft's lawyer asks for some clarification and the judge again explains what needs to be taken down:

THE COURT: Yes. So they need to take down "I don't often ask this, but I'd like for everyone in our community who believes that patent trolls are bad for open source to repost, link, tweet, and share this post. Please help us to get the word out by sharing this post on Facebook, LinkedIn, Twitter, or email." All of that is to be deleted.

In addition, towards the end, beginning with, "Eventually, that lunch money adds up to a lot more than a doctor's visit." And that continues on. And to take down the remainder, which includes Tod Tumey's confidential correspondence information and the email 1, 2, 3, email 4, final notice letter link. And then there shouldn't be any need for the image attribution. Does that clarify your concern?

So, first off, I don't see how this is possibly allowed under the 1st Amendment. Directly ordering a company to edit a blog post to remove a request to share the blog post on social media seems like a fairly blatant infringement of the 1st Amendment. A company should certainly have the right to notify its community that it is in the middle of a costly legal battle (one that it believes is frivolous), and part of getting people to understand how serious it is is asking for that information to be shared.

Mycroft's lawyer then points out that since the company is part of the open source community, he's worried that this order might prevent them from collaborating on certain projects, or even asking for assistance, and the judge gives an unfortunate answer to that scenario:

MR. DeBACKER: So often -- they are part of an open source network that collaborates with other open source innovators. And I just want to be clear that they're going to be able to continue to ask for support outside of this matter with sharing links and such with their open source network, if they post on other forums, if they're going to be allowed to request aid and other things like that, as long as they're not directing it towards codes like this.

THE COURT: Well, I'll just have to see it as it comes. I don't want to have to rule on that now. I know just in my own little messing around on my phone, I see that they may be seeking financial assistance with attorneys' fees. You know, that I'm not -- that doesn't have anything to do with this issue. So I don't know what else you're referring to, but just -- I mean, I think it's common sense what the Court's focus is.

That "know it when I see it" kind of thing is dangerous to free speech as well. It does not provide any clear guidelines, and likely creates a chilling effect in which the company has to be careful not to run afoul of these amorphous speech suppressing rules. Again, I can't see how that doesn't fly in the face of the 1st Amendment. Yes, there's the infamous Potter Stewart "I know it when I see it" test for obscenity, but obscenity is a clearly defined exception to the 1st Amendment. And, yes, incitement to imminent violence is also an established exception, it's a very narrow one. And the Mycroft blog post comes nowhere near that standard. The violent imagery was clearly figurative, not literal. It even linked to an article where the "stabbed, shot, and hanged" message came from -- and it was about killing off an attempt to ban municipal broadband. In other words, it was clearly figurative and not an actual threat or incitement to violence.

Either way, the case is getting even more bizarre, and still dealing with my blog post. One of Voice Tech's lawyers sent a letter to Mycroft's lawyers saying that a later blog post by Mycroft which merely links to my blog post is in contempt of the order, because my blog post contains the original language the court ordered deleted.

It has come to Voice Tech’s attention that on July 1, 2020, Joshua Montgomery published an article on Mycroft AI’s website entitled “Mark II Update – June 2020.” Under the “Updates” section, in the second paragraph, there is a link entitled “patent trolls” as shown here:

That link, when clicked, takes the reader to a TECHDIRT article from February 13, 2020, which focuses on the language Mycroft was ordered to take down. To the extent Mycroft is able to have the threatening language removed from the TECHDIRT article, it is obligated to do so. At the very least, Mycroft must remove the link to this TECHDIRT article, which Joshua Montgomery recently included in his Mark II Update article on Mycroft’s website.

Further, the original threatening article is currently posted on the Mycroft Community Forum at this URL: https://community.mycroft.ai/t/troll-hunter-mycrofts-position-on-patent-trolls/8047. This publicly available posting of the original article needs to be redacted to comply with the Court’s Order. Additionally, the links to emails 1, 2, 3, and 4, as well as the final notice letter, are still active and need to be deleted.

Voice Tech demands that Mycroft remove the link to the TECHDIRT article and redact the original article on the Mycroft Community Forum by no later than the close of business on Wednesday, July 22, 2020. If Mycroft fails to comply, Voice Tech will have no option but to file a motion for contempt with the Court.

Seeing as the letter said that "to the extent Mycroft was able to have the threatening language removed from the TECHDIRT article, it is obligated to do so," the company forwarded the letter on to us. Obviously, Mycroft has no ability to remove language from Techdirt, and we have no intention of removing such language, as we feel that our posting that original language is clearly protected under the 1st Amendment. I do see that Mycroft has removed the link from its blog to us however, meaning that some of the fallout from this unconstitutional order is that it sends us less traffic. That seems unfortunate and again raises 1st Amendment concerns about a judge's order, and the plaintiff's demands, directly targeting a news site for our reporting.

Obviously, it's not good that some immature kids got angry at the lawyers behind Voice Tech, but people are sick of patent trolls and takedowns and sketchy attempts to abuse legal process. It certainly seems like this gag order and further demands to censor speech are just another part of that trend.

I found the whole situation with the court order perplexing, so I asked 1st Amendment lawyer Ken White if that order, or the request from Voice Tech's lawyers was out of the ordinary, and he told the following:

“There’s no lawful basis to demand that Techdirt take down any part of its story – all the more so now that the story involves this First Amendment controversy, which is the heart of what Techdirt covers. As always, I’m ready to lend a legal hand if needed.”

Hopefully that's the end of this issue, though I am still troubled by Voice Tech's desire to censor speech (and, of course, its trolling efforts).

On a separate note, it appears that Unified Patents, the organization that tries to get bad patents invalidated, has now become aware of the Mycroft AI situation and has filed for an inter partes review at the US Patent Office. One hopes that these patents are thrown out and that Mycroft AI is able to get back to focusing on building open source voice assistants, rather than having to fight back against a bunch of lawyers building nothing but trouble.

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The federal government's "Fusion Centers" -- overseen by the DHS -- continue to provide us with the least bang for our federal buck. DHS officials have told Congress that the real purpose of the centers -- supposedly designed to gather intelligence about threats to the country -- is to generate conversations about terrorism. And those conversations are meant to portray the DHS as useful and worthy of continued funding.

Officials behind the false claims told Senate investigators that such reports weren’t meant to be “finished intelligence” and that despite their report’s inaccuracies and sloppy wording they considered it to be a “success.”

“[It did] exactly what it’s supposed to do – generate interest,” DHS officials told Senate investigators.

That's really not something we need. The country has plenty of terrorism awareness already. It doesn't need to have its time and money wasted on half-baked reports written by apparently half-baked DHS officials. Nor does it need the combined forces of federal and local law enforcement generating "leads" from citizens who are more racist than terrified, and pretending these bigoted assertions are useful intelligence. From this so-called "intelligence," DHS components (along with their local partners) head out into the field to violate rights and privacy. All this does is generate antipathy and waste tax dollars.

Apparently, government agencies will believe almost anything anyone tells them. How that's going to fight a war on terror is anyone's guess. A long-dormant satirical site recently became the focus of Fusion Center intel gathering, most likely thanks (at least in part) to some helpful citizens whose heads the joke sailed over.

A satirical website offering “rioters” for $99 each — with a “Car/Dumpster fire upgrade option available” — was cited by the FBI as evidence that “violent agitators” were being paid to cause mayhem in the early days of the George Floyd protests. Anti-terrorism agencies known as Fusion Centers, including the one in Maine, spread the bogus warning to local police departments, likely contributing to increased tension and conflict between officers and demonstrators in the streets.

A Situational Information Report by the FBI’s San Antonio Division, dated June 3, states: “unidentified individuals discussed various websites for payment to agitate and commit violent acts.” Payments to “violent agitators” were made “anonymously via Bitcoin” and “were rumored to be managed by members of Antifa.” The report claims “targets and locations were also discussed on the websites.”

The website, Protestjobs.com, was created in 2017 in response to conspiracy theories about George Soros funded paid protesters disrupting Trump events. After some initial popularity, the site receded into the internet background. But its popularity surged again after the George Floyd protests began, as theorists once again sold themselves on the idea that widespread civil unrest was actually the result of paid protesting.

The site's recent popularity generated articles at BuzzFeed and Reuters, both of which pointed out the site was satirical. Its popularity among conspiracy theorists resulted in a Snopes post debunking the notion that the site was actually offering paid protesters to whoever wanted to buy them.

We would expect debunkings like this to fail to persuade conspiracy theorists. What we wouldn't expect is for the nation's top investigative agency to do zero due diligence before informing other government agencies about this supposedly dangerous site.

Yet that same day, June 3, the FBI office in Texas was taking Protest Jobs deadly serious. Its report states: “The company offers a variety of protest packages that include, but are not limited to, proving spray paint artists, broken storefront windows, and car and dumpster fire upgrade options.”

The official warning sent to local cops in early June by the Maine Information and Analysis Center (MIAC) and other Fusion Centers linked to that report and said it “discusses the use of various websites for payment to individuals who agitate and commit violent acts during protests.”

Look, we understand securing the nation is a round-the-clock job. And it's not an easy one. But when civil liberties and privacy are on the line -- as they always are when there's a Fusion Center in operation -- we would prefer to see our intelligence gathering public servants be a bit more intelligent. The FBI being duped by a clearly satirical website is a horrible look, especially as the agency continues to increase its involvement in the national security arena. Its history of rights violations is already lengthy and disturbing. But now it's operating in an area with less oversight, laxer rules, and more deference from courts. It's only a matter of time before terror warriors end up ruining someone's life because they didn't get the joke.

For decades, incumbent broadband and television giants like Comcast and AT&T enjoyed life from a comfortable position of monopoly dominance. If you want to subscribe to broadband, such companies are often your only option. If you wanted to subscribe to television service, you were required to rent a locked down, highly proprietary cable box courtesy of the industry's cable hardware monopoly. Are you a broadcaster and want to have your cable channel in a conspicuous position in the lineup? Expect headaches. Want to use their utility poles to build a decent competitor? Expect a lot of bullshit.

Natural monopolies are a pain in the ass. Telecom monopolies like AT&T, whose domination spans the better part of a century, are a very particular type of pain in the ass. But with cord cutting and the rise of streaming changing at least part of their business equations, it's interesting to watch how these giants of yesterday are now struggling to adapt to a new era in which they not only no longer dominate, but often have to collaborate.

Case in point. Before its 2015 merger with DirecTV and 2018 merger with Time Warner, AT&T -- a company with a thirty year track record of obvious, documented, monopolistic behavior -- told anybody who'd listen that there was simply no way that the company would use the greater scale from its merger ambitions to behave badly.

While U.S. District Court Judge Richard Leon bought into that nonsense, AT&T quickly set about proving to everybody that critics were right to worry. It set about abusing its broadband monopoly to thwart streaming competitors, drove up TV prices on consumers and competitors alike, and began withholding HBO content from competitors. All things it swore to the courts it wouldn't do, and all while its lobbyists set about dismantling consumer protections (like net neutrality rules) designed specifically to thwart this kind of behavior.

As AT&T attempts (poorly) to pivot toward the cord cutting generation, the company is suddenly finding itself in an alien predicament: it has to innovate, collaborate, and compete. But with companies like Roku and Amazon now dominating the streaming hardware space, AT&T's been having a hard time bullying them into carrying its streaming platform. In turn, AT&T has gotten a bit pouty as it tries to explain why, despite all this bullying, posturing, bullshit, and market domination, it still managed to lose nearly 1 million TV subscribers last quarter and nearly four million subscribers in just the last few years:

"AT&T’s chief executive, John Stankey, had some harsh words for Amazon on the earnings call after the report. “We’ve tried repeatedly to make HBO Max available” on Amazon, he said. “Unfortunately, Amazon has taken an approach of treating HBO Max and its customers differently than how they’ve chosen to treat other services and their customers."

Not that intellectual consistency is a thing we do anymore in the United States, but some observers justifiably found AT&T's whining a bit ironic:

Maybe it's just me, but a 30 year natural monopoly gatekeeper that just got done lobbying to kill net neutrality rules (designed to ensure AT&T couldn't abuse its broadband monopoly) pivoting unironically to complaining about unfair treatment is... kind of funny?

The truth is that while Stankey tries to blame Amazon for its predicament, most of AT&T's wounds are self-inflicted. Despite the company getting a $42 billion tax break from the Trump administration in exchange for doing less than nothing, and despite billions more in Trump administration regulatory favors designed to protect AT&T's dominance (like neutering the FCC from within or killing broadband privacy rules), and despite spending $150 billion on megamergers to dominate the sector... AT&T's still losing pay TV subscribers hand over fist.

Why? One, because AT&T's streaming market entry strategy was such a confusing branding mess, it wound up confusing even the company's own employees. Two, because the bullying strategies that work in the uncompetitive broadband sector, don't work in a sector with actual competition, and a need for innovation and collaboration. Three, because AT&T spent $150 billion on mergers, then tried to extract that money from its customers in the form of rate hikes, seemingly oblivious that the entire point of "cord cutting" and streaming for the end users is greater flexibility at lower costs.

The lion's share of AT&T's troubles right now are self-inflicted, yet a natural monopoly whining about being treated unfairly does at least bring some much needed entertainment value during these dark times.