If there is one thing that really needs to stop at the USPTO, it is the organization's continued approval for trademarks on terms that are basic geographic indicators. While this isn't just an American thing, far too often people are able to get trademark approvals for marks like area codes or the name of their home counties and towns. Given that the purpose of trademark law is to allow unique identifiers for the source of a good or service, marks like these are obvious perversions of the law.

And yet it keeps happening. One recent example of this comes from Kentucky, where two Louisville breweries are in a fight over the use of the name of a neighborhood in that city, Butchertown.

Copper & Kings American Brandy Co. and Butchertown Brewing Inc. are engaged in an intellectual property dispute over the use of “Butchertown” in the forthcoming brewery’s name. Andy Cobb, owner of Butchertown Brewing, posted a GoFundMe campaign July 27, to raise $5,000 to go toward legal fees associated with establishing his right to use “Butchertown” in the name of his brewery.

Copper & Kings sent a cease-and-desist letter to the brewery April 29 for the use of “Butchertown” in the business’ name, as records from the U.S. Patent and Trademark Office (USPTO), show Joe and Lesley Heron, founders of Copper & Kings, have held the trademark for “Butchertown” on beer, ale, lager, stout, porter and shandy products since 2013.

Butchertown, again, is a neighborhood in Louisville. Close to downtown, it's well known in the area. The very idea that someone could keep a brewery in Butchertown from naming itself Butchertown Brewing Inc. is downright silly. Trademark law was never meant to prevent a company from stating where it was from.

Notably, while Copper & Kings is indeed headquartered in Butchertown as well, it's a massive brand that has expanded to more than half of the states in America.

As of July 2017, Copper & Kings' 31 markets include: Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Virginia, Washington, Washington D.C., West Virginia, Wisconsin.

Which, hey, good for them! Still, one wonders just for whom the term Butchertown in its brands serves as a better source identifier, Copper & Kings, or the would be Butchertown Brewing Inc.?

Either way, this is all very silly. The USPTO should not be granting trademarks on geographic terms. And if the name of a damn neighborhood in Louisville, Kentucky isn't a geographic term, I don't know what would be.

The COVID-19 pandemic has spawned an infodemic, a vast and complicated mix of information, misinformation and disinformation.

In this environment, false narratives – the virus was “planned,” that it originated as a bioweapon, that COVID-19 symptoms are caused by 5G wireless communications technology – have spread like wildfire across social media and other communication platforms. Some of these bogus narratives play a role in disinformation campaigns.

The notion of disinformation often brings to mind easy-to-spot propaganda peddled by totalitarian states, but the reality is much more complex. Though disinformation does serve an agenda, it is often camouflaged in facts and advanced by innocent and often well-meaning individuals.

As a researcher who studies how communications technologies are used during crises, I’ve found that this mix of information types makes it difficult for people, including those who build and run online platforms, to distinguish an organic rumor from an organized disinformation campaign. And this challenge is not getting any easier as efforts to understand and respond to COVID-19 get caught up in the political machinations of this year’s presidential election.

Rumors, misinformation and disinformation

Rumors are, and have always been, common during crisis events. Crises are often accompanied by uncertainty about the event and anxiety about its impacts and how people should respond. People naturally want to resolve that uncertainty and anxiety, and often attempt to do so through collective sensemaking. It’s a process of coming together to gather information and theorize about the unfolding event. Rumors are a natural byproduct.

Rumors aren’t necessarily bad. But the same conditions that produce rumors also make people vulnerable to disinformation, which is more insidious. Unlike rumors and misinformation, which may or may not be intentional, disinformation is false or misleading information spread for a particular objective, often a political or financial aim.

Disinformation has its roots in the practice of dezinformatsiya used by the Soviet Union’s intelligence agencies to attempt to change how people understood and interpreted events in the world. It’s useful to think of disinformation not as a single piece of information or even a single narrative, but as a campaign, a set of actions and narratives produced and spread to deceive for political purpose.

Lawrence Martin-Bittman, a former Soviet intelligence officer who defected from what was then Czechoslovakia and later became a professor of disinformation, described how effective disinformation campaigns are often built around a true or plausible core. They exploit existing biases, divisions and inconsistencies in a targeted group or society. And they often employ “unwitting agents” to spread their content and advance their objectives.

Regardless of the perpetrator, disinformation functions on multiple levels and scales. While a single disinformation campaign may have a specific objective – for instance, changing public opinion about a political candidate or policy – pervasive disinformation works at a more profound level to undermine democratic societies.

The case of the ‘Plandemic’ video

Distinguishing between unintentional misinformation and intentional disinformation is a critical challenge. Intent is often hard to infer, especially in online spaces where the original source of information can be obscured. In addition, disinformation can be spread by people who believe it to be true. And unintentional misinformation can be strategically amplified as part of a disinformation campaign. Definitions and distinctions get messy, fast.

Consider the case of the “Plandemic” video that blazed across social media platforms in May 2020. The video contained a range of false claims and conspiracy theories about COVID-19. Problematically, it advocated against wearing masks, claiming they would “activate” the virus, and laid the foundations for eventual refusal of a COVID-19 vaccine.

Though many of these false narratives had emerged elsewhere online, the “Plandemic” video brought them together in a single, slickly produced 26-minute video. Before being removed by the platforms for containing harmful medical misinformation, the video propagated widely on Facebook and received millions of YouTube views.

As it spread, it was actively promoted and amplified by public groups on Facebook and networked communities on Twitter associated with the anti-vaccine movement, the QAnon conspiracy theory community and pro-Trump political activism.

But was this a case of misinformation or disinformation? The answer lies in understanding how – and inferring a little about why – the video went viral.

The video’s protagonist was Dr. Judy Mikovits, a discredited scientist who had previously advocated for several false theories in the medical domain – for example, claiming that vaccines cause autism. In the lead-up to the video’s release, she was promoting a new book, which featured many of the narratives that appeared in the Plandemic video.

One of those narratives was an accusation against Dr. Anthony Fauci, director of the National Institute for Allergy and Infectious Diseases. At the time, Fauci was a focus of criticism for promoting social distancing measures that some conservatives viewed as harmful to the economy. Public comments from Mikovits and her associates suggest that damaging Fauci’s reputation was a specific goal of their campaign.

In the weeks leading up to the release of the Plandemic video, a concerted effort to lift Mikovits’ profile took shape across several social media platforms. A new Twitter account was started in her name, quickly accumulating thousands of followers. She appeared in interviews with hyperpartisan news outlets such as The Epoch Times and True Pundit. Back on Twitter, Mikovits greeted her new followers with the message: “Soon, Dr Fauci, everyone will know who you ‘really are’.”

This background suggests that Mikovits and her collaborators had several objectives beyond simply sharing her misinformed theories about COVID-19. These include financial, political and reputational motives. However, it is also possible that Mikovits is a sincere believer of the information that she was sharing, as were millions of people who shared and retweeted her content online.

What’s ahead

In the United States, as COVID-19 blurs into the presidential election, we’re likely to continue to see disinformation campaigns employed for political, financial and reputational gain. Domestic activist groups will use these techniques to produce and spread false and misleading narratives about the disease – and about the election. Foreign agents will attempt to join the conversation, often by infiltrating existing groups and attempting to steer them towards their goals.

[Deep knowledge, daily. Sign up for The Conversation’s newsletter.]

For example, there will likely be attempts to use the threat of COVID-19 to frighten people away from the polls. Along with those direct attacks on election integrity, there are likely to also be indirect effects – on people’s perceptions of election integrity – from both sincere activists and agents of disinformation campaigns.

Efforts to shape attitudes and policies around voting are already in motion. These include work to draw attention to voter suppression and attempts to frame mail-in voting as vulnerable to fraud. Some of this rhetoric stems from sincere criticism meant to inspire action to make the electoral systems stronger. Other narratives, for example unsupported claims of “voter fraud,” seem to serve the primary aim of undermining trust in those systems.

History teaches that this blending of activism and active measures, of foreign and domestic actors, and of witting and unwitting agents, is nothing new. And certainly the difficulty of distinguishing between these is not made any easier in the connected era. But better understanding these intersections can help researchers, journalists, communications platform designers, policymakers and society at large develop strategies for mitigating the impacts of disinformation during this challenging moment.

Kate Starbird, Associate Professor of Human Centered Design & Engineering, University of Washington

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Cook County (IL) Sheriff Tom Dart doesn't appear to know much about the First Amendment. He also doesn't understand Section 230. The grandstanding sheriff has graced Techdirt's page multiple times for suing online marketplaces and strong-arming payment companies in a severely misguided attempt to combat sex trafficking. His assaults on Craigslist and Backpage were terminated by federal courts, which reminded the sheriff of the existence of both Section 230 immunity and the First Amendment. Law enforcement officers may not be required to know the laws they enforce, but they should at least have some passing familiarity with the Constitution.

Sadly, Sheriff Dart is still unfamiliar with Constitutional rights and protections. The sheriff's latest violation of rights stems from his decision to engage in pretrial detention practices that ignore the Constitution, as well as changes to local law. The Seventh Circuit Appeals Court doesn't care much for that. Its order [PDF], which allows plaintiffs to continue their lawsuit against the sheriff for violation of their rights, makes it clear the Sheriff's freelancing isn't doing the Fourth Amendment any favors.

The opinion opens up with an idealistic quote from the Supreme Court.

“In our society,” the Supreme Court has said, “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987).

Not so, says the Seventh Circuit, citing Bureau of Justice statistics showing two-thirds of all inmates have not been convicted of a criminal offense. As of 2018, that was 490,000 people in jails awaiting trial. Some can't make bail. Others, like the ones suing Sheriff Dart, could make bail but were still denied release from detention. This happened despite revised county policies that were supposed to make it easier for those not yet convicted of crimes to be released until their court date.

After the new policy was put in place, Sheriff Dart challenged it. Recidivism rates for alleged gun felons rose from 0.7 percent of released arrestees to 2.5 percent. According to Dart, this was unacceptable. He told the Cook County Board of Commissioners he personally would oversee the release of anyone ordered to be released by the court. Dart told the county any personal disagreement with courts' release orders would result in another visit to the court in hopes of securing additional pre-trial detainment. This was supposed to happen within 48 hours, according to Dart's own assertions.

This is what actually happened, and it involved more than people charged with gun-related felonies.

On February 23, 2018 a nonprofit posted $5,000 bond on behalf of plaintiff Taphia Williams. Sixty hours later she had not been released. After repeated telephone calls, a jail officer informed the nonprofit’s agent that Williams’s case was “under review” and assured him: “Your person will be taken care of in the order that the bond was posted.” Williams’s counsel filed this lawsuit on the evening of February 26. Williams was released early the next morning. This was the first and shortest of these plaintiffs’ confinements.

Plaintiff Tony Mason posted $7,500 bond on February 26 but had not been released as of March 2, when his counsel moved for a rule to show cause why the Sheriff should not be held in contempt of the court’s bail order. A hearing on the motion was set for 9:00 a.m. on March 7. The Sheriff released Mason at 4:00 a.m., five hours before the hearing. Plaintiff Gregory Cooper’s story is essentially the same.

After posting $1,000 bond on his son’s behalf, the father of plaintiff Xavier Webster was reduced to pleading by text message with a policy staffer in the Sheriff’s office before his son was released nine days later.

Plaintiff Joshua Atwater, having spent a year on the Sheriff’s monitoring program already, was re-arrested on February 21 after mistakenly missing a court date. He had bail reinstated by the court on the same terms as before on March 6. The Sheriff did not release him to monitoring until March 12, on the condition that he have no contact with his five children—a release condition not imposed by the court but cut by the Sheriff from whole cloth.

There are a couple of rights in play here, as well as some state-level contempt of court allegations against Dart. The court points out no one is arguing law enforcement violated any rights by arresting the plaintiffs. The problem here is probable cause for continued detention evaporates once bail is posted or a court orders release.

Once the arrestee appears before the court, the purpose of the initial seizure has been accomplished. Further seizure requires a court order or new cause; the original probable cause determination is no justification.

The Fourth Amendment right to be free from unreasonable seizures remains intact, even if someone has been accused of a criminal act. The Sheriff's arguments otherwise are nonsensical.

Whether, for how long, and at whose behest plaintiffs were detained thereafter are simply not matters of Fourth Amendment significance, according to the Sheriff.

We doubt the Sheriff would push this argument to the hilt. He could not plausibly argue the Fourth Amendment would pose no obstacle to his detention of plaintiffs after a non-prosecution decision on the same charges—or an acquittal, or a conviction. A court’s bail orders are of the same stripe. We have consistently accorded such orders Fourth Amendment significance…

To ensure rights are respected, Sheriff Dart needs to remove himself from this equation. Instead, he decided to insert himself into a process that's supposed to be handled by a neutral party: the courts. The courts are a check against government abuse. Dart's abuse of the plaintiffs' rights are exactly the sort of thing the normal process -- minus Dart's interloping -- would have prevented.

Put differently, the original probable cause was “exhausted” by the courts’ bail orders. Carlson, 342 U.S. at 546. This is the true sense of plaintiffs’ “degree of seizure” and “reseizure without probable cause” characterizations. It is only another way of expressing our original conclusion: courts, not sheriffs, make pretrial detention decisions.

The Appeals Court says it's not there to micromanage the Cook County pretrial release program nor rewrite the policies Dart is supposed to be following. But it's also not going to sit on the sidelines and allow Sheriff Dart to ignore court orders and impose his will on arrestees.

The Fourth Amendment does not require any particular administrative arrangement for processing bail admissions. It does require, however, that whatever arrangement is adopted not result in seizures that are unreasonable in light of the Fourth Amendment’s history and purposes. “[I]f the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty,” the Sheriff’s flat refusal to heed the courts’ bail orders alleged in this case, based on nothing more than a policy disagreement and resulting in unjustified detentions of multiple days, simply will not do.

The case heads back down to the lower court. And there's still a chance Sheriff Dart will get rung up for contempt. That will be handled by the state but the Seventh Circuit says it seems likely the state's Supreme Court will find Dart should have asked a court to modify any bail/release orders he didn't agree with, rather than modifying them on his own to keep arrestees detained.

The Fourth Amendment is continuous. It doesn't terminate after an arrest. It may be satisfied temporarily during an arrest, but it remains in place even after someone is jailed awaiting arraignment. Sheriff Dart -- who claims to be bringing a "humane, compassionate and intelligent approach to law enforcement" to Cook County -- doesn't appear to understand that. Or, if he does understand, he just doesn't care.

In New Hampshire, Facebook has been dealing with a pro se lawsuit from the operator of a cafe, whose Instagram account was deleted for some sort of terms of service violation (it is never made clear what the violation was, and that seems to be part of the complaint). The Teatotaller cafe in Somerset, New Hampshire, apparently had and lost an Instagram account. The cafe's owner, Emmett Soldati first went to a small claims court, arguing that this violated his "contract" with Instagram, and cost his cafe revenue. There are all sorts of problems with that, starting with the fact that Instagram's terms of service, like every such site, say they can remove you for basically any reason, and specifically says:

You agree that we won’t be responsible . . . for any lost profits, revenues, information, or data, or consequential, special, indirect, exemplary, punitive, or incidental damages arising out of or related to [the Terms of Use], even if we know they are possible. This includes when we delete your content, information, or account.

And then there's the Section 230 issue. Section 230 should have wiped the case out nice and quick, as it has in every other case involving a social media account owner getting annoyed at being moderated. And, indeed, it appears that the local court in Dover tossed the case on 230 grounds. Soldati appealed, and somewhat bizarrely, the New Hampshire Supreme Court has overturned that ruling and sent it back to the lower court. That doesn't mean that Facebook will definitely lose, but the ruling is quite remarkable, and an extreme outlier compared to basically every other Section 230 case. It almost reads as if the judges wanted this particular outcome, and then twisted everything they could think of to get there.

To be clear, the judges who heard the case are clearly well informed on Section 230, as they cite many of the key cases in the ruling. It says that to be protected by Section 230(c)(1) (the famed "26 words" which say a website can't be held liable for the actions of its users), there's a "three pronged" test. The website has to be an interactive computer service -- which Facebook clearly is. The plaintiff has to be an information content provider, which Teatotaller clearly is. That leaves the last bit: does the lawsuit seek to hold Facebook liable as a publisher or speaker.

Let's take a little journey first. One of the things that often confuses people about Section 230 is the interplay between (c)(1) and (c)(2) of the law. (c)(1) is the websites not liable for their users' content part, and (c)(2) is the no liability for any good faith moderation decisions part. But here's the weird thing: in over two decades of litigating Section 230, nearly every time moderation decisions are litigated, the website is considered protected under (c)(1) for those moderation decisions. This used to strike me as weird, because you have (c)(2) sitting right there saying no liability for moderation. But, as many lawyers have explained it, it kinda makes sense. (c)(1)'s language is just cleaner, and courts have reasonably interpreted things to say that holding a company liable for its moderation choices is the same thing as holding it liable as the "publisher."

So, in this case (as in many such cases), Facebook didn't even raise the (c)(2) issue, and stuck with (c)(1), assuming that like in every other case, that would suffice. Except... this time it didn't. Or at least not yet. But the reason it didn't... is... weird. It basically misinterprets one old Section 230 case in the 9th Circuit, the somewhat infamous Barnes v. Yahoo case. That was the case where the court said that Yahoo lost its Section 230 protections because Barnes had called up Yahoo and the employee she spoke to promised to her that she would "take care of" the issue that Barnes was complaining about. The court there said that thanks to "promissory estopel," this promise overrode the Section 230 liabilities. In short: when the company employee promised to do something, they were forming a new contract.

Barnes is one of the most frequently cited case by people trying to get around Section 230, and it almost never works, because companies know better than to make promises like the one that happened in the Barnes case. Except here, the judges say that the terms of service themselves may be that promise, and thus it can be read as the terms of service overrule Section 230:

However, to the extent that Teatotaller’s claim is based upon specific promises that Facebook made in its Terms of Use, Teatotaller’s claim may not require the court to treat Facebook as a publisher. See Barnes, 570 F.3d at 1107, 1109 (concluding that the defendant website was not entitled to immunity under the CDA for the plaintiff’s breach of contract claim under a theory of promissory estoppel because “the duty the defendant allegedly violated springs from a contract—an enforceable promise—not from any non-contractual conduct or capacity of the defendant”); Hiam v. Homeaway.com, Inc., 267 F. Supp. 3d 338, 346 (D. Mass. 2017) (determining that “the Plaintiffs are able to circumvent the CDA” as to certain claims by asserting that “through [the defendant’s] policies, [the defendant] promises (1) a reasonable investigatory process into complaints of fraud and (2) that the website undertakes some measure of verification for each posting”), aff’d on other grounds, 887 F.3d 542 (1st Cir. 2018).

This is not a total win for Teatotaller, as the court basically says there isn't enough information to know whether the claims are based on promises within the terms of service, or if it's based on Facebook's decision to remove the account (in which case, Facebook would be protected by 230). And thus, it remands the case to try to sort that out:

Thus, because it is not clear on the face of Teatotaller’s complaint and objection whether prong two of the CDA immunity test is met, we conclude that the trial court erred by dismissing Teatotaller’s breach of contract claim on such grounds. See Pirozzi, 913 F. Supp. 2d at 849. We simply cannot determine based upon the pleadings at this stage in the proceeding whether Facebook is immune from liability under section 230(c)(1) of the CDA on Teatotaller’s breach of contract claim. See id. For all of the above reasons, therefore, although Teatotaller’s breach of contract claim may ultimately fail, either on the merits or under the CDA, we hold that dismissal of the claim is not warranted at this time.

So, there are still big reasons why this case against Facebook is likely to fail. On remand, the court may recognize that the issue is just straight up moderation and dismiss again on 230 grounds. Or, it may say that it's based on the terms of service and yet still decide that nothing Facebook did violated those terms. Facebook is thus likely to prevail in the long run.

But... this ruling opens up a huge potential hole in Section 230 (in New Hampshire at least), saying that what you put into your terms of service could, in some cases, overrule Section 230, leading you to have to defend whether or not your moderation decision somehow violated your terms.

That sound you hear is very, very expensive lawyers now combing through terms of service on every dang platform out there to figure out (1) how to shore them up to avoid this problem as much as possible, or (2) how to start filing a bunch of sketchy lawsuits in New Hampshire to exploit this new loophole.

Meanwhile, Soldati seems to be celebrating a bit prematurely:

“I think it’s kind of incredible,” said Soldati, who represented himself as a pro se litigant. “I think this is a very powerful message that if you feel a tech company has trampled or abused your rights and you don’t feel anyone is listening ... you can seek justice and it will matter.”

That's... not quite the issue at hand. Your rights weren't trampled. Your account was shut down. That's all. But in fighting this case, there may be a very dangerous hole now punched into Section 230, at least in New Hampshire, and it could create a ton of nuisance litigation. And, that even puts business owners like Soldati at risk. 230 protects him and the comments people make on his (new) Instagram account. But if he promises something... he may wipe out those protections.

Protests related to the killing of George Floyd by Minneapolis police officer Derek Chauvin have passed the two-month mark in Portland, Oregon. In response to unfettered liberalism, the Trump administration has sent in the troops. Officers from ICE, CBP, US Marshals Service, and other federal agencies flooded into Portland with the ostensible aim of protecting federal property, like the courthouse targeted by protesters.

Instead of a measured response to defuse tensions, federal officers engaged in Gestapo tactics. Unidentified officers in unmarked vehicles began removing protesters from the streets, hauling them away to unknown locations for questioning. Those released after being detained were given no paperwork commemorating their interaction with America's secret police, nor were they told why they had been detained.

This wasn't the only broadside against Constitutional rights. Federal officers also attacked journalists and legal observers. This didn't just violate social contracts. It violated the First Amendment. Local journalists and observers sued. And they obtained a restraining order from a federal court blocking federal agents from attacking clearly identified journalists and observers. The court noted that local law enforcement -- which had been hit with an earlier restraining order -- was able to abide by the court-ordered rules of engagement. The court said the federal government offered no plausible argument why it would be impossible to abide by the same restrictions.

The [federal] police are rioting.

The plaintiffs are back in court asking for sanctions to be brought against the federal government for refusing to abide by the restraining order. (h/t Mike Scarcella)

The opening of the motion [PDF] contains some invective, but it appears to be justified.

On July 23, 2020, the Court issued a temporary restraining order prohibiting federal agents from assaulting and dispersing journalists and legal observers. Within hours, federal agents began violating the Court’s TRO and have continued to do so every night since. These violations are not inadvertent. They are intentional acts by a lawless president, who has sent his paramilitary forces to shoot up the streets of Portland, choke downtown in a haze of toxic chemical fumes, and generate reelection soundbites—in blatant disdain of public safety, the rule of law, and the most fundamental principles of our Constitution.

The plaintiffs aren't wrong. Trump has made it clear he's only sending federal agents into "liberal" cities. This may score points with his voter base but it's doing nothing for the rest of America, which has expressed its disdain for the tactics deployed in Portland.

These tactics are forbidden -- not just by the Constitution, but by a court order directly addressing the targeting of journalists and protesters. And yet, the government persists.

On July 23, a federal agent shot reporter Jonathan Levinson while he was trying to take a photo. No protesters were near him. A federal agent also shot journalist Brian Conley, when he was trying to video an arrest. Later that night, federal agents tear-gassed Mr. Conley. The same night, federal agents shot reporter Rebecca Ellis and separately prevented her from documenting their dispersal of protesters.

On July 24, federal agents shot legal observer Haley Nicholson in her chest, just above her heart, from four feet away. Impact munitions should not be used at distances of less than 15 feet or above the waist.

On July 25, federal agents deliberately sprayed toxic chemicals into the faces of multiple legal observers, including Bruce Knivlia and Kat Mahoney, at point blank range. They were all clearly identified in blue ACLU vests and green NLG hats. They also shot photojournalist Kathryn Elsesser, who was also clearly marked with “PRESS” on her helmet.

On July 26, a federal agent temporarily left an advancing line of agents to kick a flaming tear-gas canister directly at a group of clearly marked journalists.

On July 27, Plaintiffs contacted government counsel to raise these blatant violations. (Declaration of Matthew Borden (“Borden Decl.”), Ex. 1.) Instead of investigating and providing information as promised, the federal defendants claimed that they were unaware of what agents and commanders were involved and offered nothing to extenuate their violations of the TRO. That night, the federal agents heaped on more acts of contempt.

Here are a couple of sworn declarations [PDF] by journalists and observers [PDF] who have been attacked by federal officers. More declarations can be found here.

If sworn declarations aren't enough, there's also video:

Here's a copy [PDF] of the depressing communication the law firm representing the journalists had with DHS counsel Joshua Gardner. When asked for information about the agencies he represents, Gardner had almost nothing useful to say.

First, Gardner said he had no idea what policies or directives were guiding agents' actions. He promised to "check" on those. The DHS's lawyer also claimed agents had seen protesters "masquerading" as journalists. When asked for proof of these claims, Gardner was unable to cite any such instance being observed by a federal officer. Finally, the government's lawyer claimed he had no information about any officers observed violating the restraining order or any details about supervisors tasked with communicating the specifics of the order to federal agents.

Chances are, very few agents have been formally made aware of the order's specifics. Ignorance is, at least for the moment, bliss. Those who don't know can't be blamed for their actions. Or, at least, not as easily. Plausible deniability in all things, including the continued violations of rights in contempt of a court order. But this ignorance may be less blissful than usual. The restraining order made it clear officers were to be made aware as soon as possible because the usual lawsuit escape hatch was being removed by the court issuing the order.

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.

If you're paying close attention, you can see the loophole being exploited. "Willful violations" are tough to prove when no one has received updated instructions. And if no one orders anyone to violate the court order, supervisors can't be held accountable either. It's a perfect storm of non-accountability. And that's what appears to be going on in Portland.

The plaintiffs are asking for justice and respect for their rights. They're asking for the federal government to play by the rules. Federal agents are responding with "Fuck you. Make me." The federal government is priming the powder keg while pretending to care about buildings and statues. If a federal court can't make federal agents play by the Constitutional rules, who can?

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How was your Wednesday? I spent 5 and a half hours of mine watching the most inane and stupid hearing put on by Rep. David Cicilline, and the House Judiciary Committee's Subcommittee on Antitrust, Commercial & Administrative Law. The hearing was billed as a big antitrust showdown, in which the CEOs of Google, Facebook, Apple and Amazon would all answer questions regarding an antitrust investigation into those four companies. If you are also a glutton for punishment, you can now watch the whole thing yourself too (though, at least you can watch it at 2x speed). I'll save you a bit of time though: there was very little discussion of actual antitrust. There was plenty of airing of grievances, however, frequently with little to no basis in reality.

If you want to read my realtime reactions to the nonsense, there's a fairly long Twitter thread. If you want a short summary, it's this: everyone who spoke is angry about some aspect of these companies but (and this is kind of important) there is no consensus about why and the reasons for their anger is often contradictory. The most obvious example of this played out in regards to discussions that were raised about the decision earlier this week by YouTube and Facebook (and Twitter) to take down an incredibly ridiculous Breitbart video showing a group of "doctors" spewing dangerous nonsense regarding COVID-19 and how to treat it (and how not to treat it). The video went viral, and a whole bunch of people were sharing it, even though one of the main stars apparently believes in Alien DNA and Demon Sperm. Also, when Facebook took down the video, she suggested that God would punish Facebook by crashing its servers.

However, during the hearing, there were multiple Republican lawmakers who were furious at Facebook and YouTube for removing such content, and tried to extract promises that the platforms would no longer "interfere." Amusingly (or, not really), at one point, Jim Sensenbrenner even demanded that Mark Zuckerberg answer why Donald Trump Jr.'s account had been suspended for sharing such a video -- which is kind of embarrassing since it was Twitter, not Facebook, that temporarily suspended Junior's account (and it was for spreading disinfo about COVID, which that video absolutely was). Meanwhile, on the other side of the aisle, Rep. Cicilline was positively livid that 20 million people still saw that video, and couldn't believe that it took Facebook five full hours to decide to delete the video.

So, you had Republicans demanding these companies keep those videos up, and Democrats demanding they take the videos down faster. What exactly are these companies supposed to do?

Similarly, Rep. Jim Jordan made some conspiracy theory claims saying that Google tried to help Hillary Clinton win in 2016 (the fact that she did not might raise questions about how Jordan could then argue they have too much power, but...) and demanded that they promise not to "help Biden." On the other side of the aisle, Rep. Jamie Raskin complained about how Facebook allowed Russians and others to swing the election to Trump, and demanded to know how Facebook would prevent that in the future.

So... basically both sides were saying that if their tools are used to influence elections, bad things might happen. It just depends on which side wins to see which side will want to do the punishing.

Nearly all of the Representatives spent most of their time grandstanding -- rarely about issues related to antitrust -- and frequently demonstrating their own technological incompetence. Rep. Greg Steube whined that his campaign emails were being filtered to spam, and argued that it was Gmail unfairly handicapping conservatives. His "evidence" for this was that it didn't happen before he joined Congress last year, and that he'd never heard of it happening to Democrats (a few Democrats noted later that it does happen to them). Also, he said his own father found his campaign ads in spam, and so clearly it wasn't because his father marked them as spam. Sundar Pichai had to explain to Rep. Steube that (1) they don't spy on emails so they have no way of knowing that emails were between a father and son, and (2) that emails go to spam based on a variety of factors, including how other users rate them. In other words, Steube's own campaign is (1) bad at email and (2) his constituents are probably trashing the emails. It's not anti-conservative bias.

Rep. Ken Buck went on an unhinged rant, claiming that Google was in cahoots with communist China and against the US government.

On that front, Rep. Jim Jordan put on quite a show, repeatedly misrepresenting various content moderation decisions as "proof" of anti-conservative bias. Nearly every one of those examples he misrepresented. And then when a few other Reps. pointed out that he was resorting to fringe conspiracy theories he started shouting and had to be told repeatedly to stop interrupting (and to put on his mask). Later, at the end of the hearing, he went on a bizarre rant about "cancel culture" and demanded each of the four CEOs to state whether or not they thought cancel culture was good or bad. What that has to do with their companies, I do not know. What that has to do with antitrust, I have even less of an idea.

A general pattern, on both sides of the aisle was that a Representative would describe a news story or scenario regarding one of the platforms in a way that misrepresented what actually happened, and painted the companies in the worst possible light, and then would ask a "and have you stopped beating your wife?" type of question. Each of the four CEOs, when put on the spot like that, would say something along the lines of "I must respectfully disagree with the premise..." or "I don't think that's an accurate representation..." at which point (like clockwork) they were cut off by the Representative, with a stern look, and something along the lines of "so you won't answer the question?!?" or "I don't want to hear about that -- I just want a yes or no!"

It was... ridiculous -- in a totally bipartisan manner. Cicilline was just as bad as Jordan in completely misrepresenting things and pretending he'd "caught" these companies in some bad behavior that was not even remotely accurate. This is not to say the companies haven't done questionable things, but neither Cicilline nor Jordan demonstrated any knowledge of what those things were, preferring to push out fringe conspiracy theories. Others pushing fringe wacko theories included Rep. Matt Gaetz on the Republican side (who was all over the map with just wrong things, including demanding that the platforms would support law enforcement) and Rep. Lucy McBath on the Democratic side, who seemed very, very confused about the nature of cookies on the internet. She also completely misrepresented a situation regarding how Apple handled a privacy situation, suggesting that protecting user's privacy by blocking certain apps that had privacy issues was anti-competitive.

There were a few Representatives who weren't totally crazy. On the Republican side, Rep. Kelly Armstrong asked some thoughtful questions about reverse warrants (not an antitrust issue, but an important 4th Amendment one) and about Amazon's use of competitive data (but... he also used the debunked claim that Google tried to "defund" The Federalist, and used the story about bunches of DMCA notices going to Twitch to say that Twitch should be forced to pre-license all music, a la the EU Copyright Directive -- which, of course, would harm competition, since only a few companies could actually afford to do that). On the Democratic side, Rep. Raskin rightly pointed out the hypocrisy of Republicans who support Citizens United, but were mad that companies might politically support candidates they don't like (what that has to do with antitrust is beyond me, but it was a worthwhile point). Rep. Joe Neguse asked some good questions that were actually about competition, but for which there weren't very clear answers.

All in all, some will say it was just another typical Congressional hearing in which Congress displays its technological ignorance. And that may be true. But it is disappointing. What could have been a useful and productive discussion with these four important CEOs was anything but. What could have been an actual exploration of questions around market power and consumer welfare... was not. It was all just a big performance. And that's disappointing on multiple levels. It was a waste of time, and will be used to reinforce various narratives.

But, from this end, the only narrative it reinforced was that Congress is woefully ignorant about technology and how these companies operate. And they showed few signs of actually being curious in understanding the truth.

Among the dated and dumb business concepts exposed as folly during the pandemic is the traditional Hollywood film release window, which typically involves a 90 day gap between the time a move appears in theaters and its streaming or DVD release (in France this window is even more ridiculous at three years). The goal is usually to "protect the traditional film industry," though it's never been entirely clear why you'd protect traditional theaters at the cost of common sense, consumer demand, and a more efficient model. Just because?

While the industry has flirted with the idea of "day and date" releases for decades (releasing movies on home video at the same time as brick and mortar theaters), there's long been a lot of hyperventilation on the part of movie theaters and traditionalists that this sort of shift wasn't technically possible or would somehow destroy the traditional "movie experience," driving theaters out of business.

The pandemic has changed everything. To the point where AMC Theaters and Universal have struck a pact to shorten the traditional release window, allowing movies to appear on demand just 17 days after they appear in theaters:

"In a stunning reversal, AMC Theatres has struck a historic agreement with Universal that will allow the studio's movies to be made available on premium video-on-demand after just 17 days of play in cinemas, including three weekends, the two companies announced Tuesday.

The deal — which presently only covers AMC's U.S. locations — shatters the traditional theatrical window, a longstanding policy that has required studios to play their films on the big screen for nearly three months before making films available in the home."

The move comes in part because Comcast NBC Universal has been having great success in pushing blockbuster films straight to on demand and streaming in the wake of the pandemic. This initially resulted in AMC Theaters pouting like a spoiled child, with AMC Theatres chair-CEO Adam Aron issuing a rather toddler-esque missive proclaiming that the theater chain would never again carry a Comcast NBC Universal film:

"It is disappointing to us, but Jeff’s comments as to Universal’s unilateral actions and intentions have left us with no choice. Therefore, effectively immediately AMC will no longer play any Universal movies in any of our theaters in the United States, Europe or the Middle East."

It's understandable that the traditional theater sector is worried, especially given the number of employees that are struggling right now. That said, Aron's comments were one of the more embarrassing "I'm taking my ball and going home" moments in modern history. And as it became clear that the pandemic would be sticking around for a while, it also apparently became clear to AMC executives that (1) pouting isn't really a business strategy, and (2) they had no power to blacklist Comcast/NBC Universal because nobody wants to risk their life by going to the theater right now.

That said, 17 days is still kind of silly, and AMC had to be paid a cut of proceeds to acknowledge reality and the future. Still, baby steps and all that.

The Australian government rang in 2019 by saddling the nation's tech companies with compelled decryption mandates. The new law gave the government the power to demand technical assistance to access any data or communications sought by law enforcement or security agencies. Sure, "case-by-case" solutions might work for awhile, but sooner or later, built-in backdoors would expedite things for both the government and their compellees.

The backdoors may not be in place yet, but it appears no one really trusts Australian tech companies now, thanks to the Australian government. An inquiry into the country's anti-encryption laws is underway and local tech giant Atlassian has expressed its displeasure with the new status quo.

Atlassian’s policy and government affairs head, Patrick Zhang, said the encryption laws had harmed Australia’s reputation in the sector.

Zhang said they had led to a reluctance among tech companies abroad to engage in Australia or with Australian companies, for fear that weaknesses would be built into their products.

Companies also fear that they could be compelled by the Australian government to do things that would constitute illegality in other countries where they operate, Zhang said.

The laws have also led to a reluctance among industry talent to work here.

You can't put a price tag on catching criminals, but presumably the new law will pay for itself (and the damage to local industry) once enough children are saved or terrorists are caught. This isn't to make light of either child exploitation or terrorism. Both should be taken seriously by law enforcement and security agencies. The problem in Australia is that legislators didn't bother to consider how much damage compelled assistance would do to lots of innocent people.

It isn't just the tech companies whose futures look a lot more murky. It's also their employees and any number of people who rely on them for income. It's anyone who uses their services and whose communications and data might be accessed inadvertently by government agencies or deliberately by malicious entities taking advantage of newly created security flaws.

In the end, Atlassian's comments are unlikely to matter. The government has already decided what the proper security/liberty exchange rate is and it appears local tech companies are just expected to serve and suffer. The outgoing independent national security law monitor claims the law is "necessary." So do the agencies that directly benefit from compelled assistance. And they've brought an unbelievable statistic with them to justify the collateral damage.

Australia’s domestic intelligence agency Asio and the Australian federal police support the law and say about 90% of priority cases involve encryption, which allows criminal suspects to communicate in a hidden manner.

Wow. 90%. This number appears to say that almost every case in which encryption is encountered is granted "priority" status. Encryption may be common but it's not that common. And even if it is, there are still a number of options available to agencies that don't include forcing companies to weaken or destroy features that secure the devices and communications of millions of innocent people.