Anyone who knows anything about me knows how much I both love and rely on profanity. Love, because profane language is precisely the sort of color the world needs more of. Rely on, because I use certain profane words the way most people use commas. So, when the courts decided that even the most profane words could be used in trademarks, I applauded. Fucks were literally given.

But not every piece of profanity deserves a trademark. And, while I again applaud Boston University's decision to create a profane slogan around COVID-19 safety awareness for its student body, why in the actual fuck did the slogan have to be trademarked?

First, the context:

Boston University asked a group of communications students for help encouraging their peers to follow the school’s strict COVID-19 safety guidelines when they return to campus for the upcoming semester.

What it got back was a slogan that did not mince words.

Last week, BU officials filed a trademark application for the slogan “F*ck It Won’t Cut It” in order to promote “public awareness of safe and smart actions and behaviors for college and university students in a COVID-19 environment.” The filing first garnered attention after a trademark lawyer flagged it Tuesday morning on Twitter.

On the slogan, fuck yeah! In fact, pretty good for a Methodist school! But on the trademark application, what the fuck? I have serious questions as to whether the application even meets the criteria for a valid mark to begin with. How, precisely, is this being used in commerce? What good or service is this trademark supposed to identify a source for? Schooling? Not really. Healthcare? Nah. What precisely are we doing here?

“Our slogan is a powerful phrase that sparks a reminder for students to make safe choices at decision points each day, because saying ‘F-it’ to responsible protocols won’t keep us on campus,” Hailey McKee, a BU graduate student and public relations manager for the campaign, told the Boston Business Journal.

Well, sure, but why hell does this need to be siloed to Boston U via trademark? The school really doesn't want its sister universities to be able to raise effective awareness using the slogan as well? Why not?

This feels ultimately like another long-tail outcome of permission culture and expansive IP enforcement, where an entity just defaults to wanting to claim IP on all the things. But the world would be better if leading institutions like BU... you know... did better.

Richard Liebowitz appears to be in trouble with a judge yet again. Judge Lewis Kaplan has issued quite an order in one of Liebowitz's thousands of cases -- Chosen Figure LLC v. Smiley Miley -- asking for proof that the plaintiff actually knows it's a client of Richard Liebowitz. The judge seems quite aware of Liebowitz's reputation:

Plaintiff's attorney, Richard Liebowitz has become quite well known for his failures to comply with court rules and orders, for having been sanctioned, and in a couple of cases for having lied to judges.

When an order starts that way, you know that it's not going to go well for Liebowitz.

Judge Kaplan notes that right as Liebowitz was required to send notices to every docket of the benchslap ruling he had received from Judge Jesse Furman, he dismissed this particular case (as he did with a bunch of others), claiming that a settlement had been reached. But, thanks to Liebowitz's reputation, Judge Kaplan wanted more info. This is... not particularly common. If you tell a judge you have a settlement they usually don't squint questionably at you. But here:

The Court, concerned in light of Mr. Liebowitz's history as to whether he in fact had been retained by the plaintiff and authorized to sue and to settle, entered an order stating in relevant part, the following:

On or before August 6, 2020, Mr. Liebowitz shall file (1) a personal affidavit or declaration (a) stating whether and when the plaintiff in this case specifically authorized him to (i) file this action and (ii) settle it, and (b) attaching any retainer agreement or other documentary evidence as to the foregoing, as well as (2) a personal affidavit or declaration of the plaintiff (a) stating whether and when the plaintiff in this case specifically authorized Mr. Liebowitz to (i) file this action and (ii) settle it, and (b) attaching any documentary evidence as to the foregoing. Failure to comply in all respects may result in the imposition of sanctions."

Judge Kaplan appears well aware of Liebowitz's history of not actually following instructions and felt the need to spell things out rather specifically in the order, rather than leave any chance for vagueness or confusion. Did Richard Liebowitz comply with the order? I'll give you one guess, and I know you'll get it right... because, no, of course Richard Liebowitz did not actually comply with the order. He did submit two declarations -- one from himself, and another from Josiah Kamau, who is a principal for Chosen Figure LLC -- but neither fulfilled the requirements of the order. First, as to Liebowitz's own declaration:

The Liebowitz declaration asserts that "[o]n February 28, 2019, Plaintiff, via its principal Josiah Kamau, signed a retainer agreement with Liebowitz Law Firm, PLLC, ('LLF') in which Plaintiff authorized LLF to file copyright infringement lawsuits on his behalf." It goes on to state that Mr. Liebowitz filed this action on June 23, 2020 (almost 16 months after the alleged date of the retainer agreement), that he notified plaintiff on June 23, 2020 that he had brought this action, and that Mr. Liebowitz had plaintiffs authority to settle the case. It attaches what Mr. Liebowitz claims are copies of the signature page of the retainer agreement and an email to Mr. Kamau notifying Kamau that he had brought this action in the name of an entity.

Several points are notable about this declaration. First, Mr. Liebowitz did not comply with the Court's direction to submit the retainer agreement. The purported signature page reveals nothing whatsoever about the alleged retainer agreement, and Mr. Liebowitz did not submit any documentary evidence as to anything beyond this page and the notification email. Second, Mr. Liebowitz claims that plaintiff (Chosen Figure, LLC) authorized him to file this action, but the purported signature page of the retainer agreement that he submitted was executed on behalf of Mr. Kamau personally and not on behalf of any corporate or other entity. Third, the purported retainer agreement was signed on February 28, 2019. This is nearly a year before the alleged infringement in this case took place, which the complaint makes clear was February 12, 2020. Whatever the terms of the agreement may be - the Court does not know because Mr. Liebowitz failed to submit it, despite a clear order requiring him to do so under threat of sanctions - the agreement cannot possibly serve as evidence that "the plaintiff in this case specifically authorized him to (i) file this action and (ii) settle it."

That's not good, Richard. Not good at all. For what it's worth, I'll just note that since this is a case from this year, in other cases, Liebowitz has insisted that since having an epic benchslap back in November of last year, he had put in place better case management tools. So, he has no excuse this time around.

As for the other declaration, well, that's not going to cut it either:

The Kamau declaration avers that, "[o]n February 28, 2019, [Kamau] personally signed a retainer agreement with Liebowitz Law Firm, PLLC ('LLF') in which [he] authorized LLF to file copyright infringement lawsuits on [his] behalf"; that Mr. Liebowitz "had [his] authority to file the present copyright infringement lawsuit as of March 17, 2020"; that Mr. Liebowitz notified him of the filing of this action on June 23, 2020 by email; and that Mr. Liebowitz had authority to settle the case. The declaration contains two exhibits, which are the same signature page and notification email attached to Mr. Liebowitz's declaration. It does not include any evidence supporting Kamau' s claim that he gave Mr. Liebowitz permission to file this lawsuit on March 17, 2020 or to settle it at a later time.

This declaration raises additional questions. Mr. Liebowitz claims that he had authority to bring this action by virtue of the purported February 28, 2019 retainer agreement. Mr. Kamau, however, declares that Mr. Liebowitz "had authority to file the present ... lawsuit as of March 17, 2020," thus implying that the retainer agreement of February 28, 2019 did not authorize the filing of this action. And Mr. Kamau, like Mr. Liebowitz, has submitted no documentation apart from the purported signature page and the June 23, 2020 email.

Given Liebowitz's history, which this judge is well acquainted with, let's just say Judge Kaplan is not happy:

This Court's order of July 30 required - and still requires - production of the full retainer agreement or agreements and all documentary evidence with respect to Mr. Liebowitz's authority to bring and settle this case. That includes all emails, letters, notes and other writings or electronically stored information bearing on the retention, the scope of the engagement (including as it may have changed from time to time), and the settlement.

All of this material shall be filed by Messrs. Liebowitz and Kamau no later than August 18, 2020.

Get your popcorn ready...

The Nutley, New Jersey Police Department fears for the safety of its officer. It fears so much it tried to bring criminal charges against people who retweeted a tweet asking Twitter users to identify an officer who was policing a protest. Georgana Sziszak is one of the five people charged for interacting with the tweet, as Adi Robertson reports for The Verge.

The Nutley Police Department filed its complaints in late July over a tweet posted during a June 26th protest. The now-deleted message included a photo of a masked on-duty police officer with a request that “If anyone knows who this bitch is throw his info under this tweet.” Because of the mask, the officer is not readily identifiable from the photograph, and there do not appear to be any replies revealing his identity.

The original poster and the retweeters are charged with cyber harassment, a fourth-degree felony punishable by up to 18 months in jail. Activist Georgana Sziszak, one of the retweeters, revealed the complaint in a GoFundMe campaign last week.

The original poster didn't find any takers for their request for the identity of the masked officer. The Nutley PD has, however, doxed its own officer by filing this criminal complaint. Here's the tweet -- since deleted -- asking for the officer's identity:

If you can't read/see the tweet, it says:

If anyone knows who this bitch is throw his info under this tweet

The Nutley PD knows who "this bitch" is and has provided all the info the original tweet was seeking:

The department charged Sziszak and others on behalf of Detective Peter Sandomenico, who the complaint identifies as the officer in the tweet. It alleges that the photo and accompanying caption threatened the officer “acting in the performance of his duties, causing Detective Sandomenico to fear that harm will come to himself, family, and property.”

Yes, it's decorated officer Peter Sandomenico -- an officer whose salary is 884% higher than the median salary in the town he serves. Sandomenico was once honored by the department for "going above and beyond" and was photographed receiving this really vague commendation. He was also photographed twice for NJ Cops Magazine, where he attended a ceremony honoring Nutley's "Police Officer of the Year." Sandomenico is a state delegate for his police union.

Like far too many officers around the nation, Peter "PJ" Sandomenico appears to have removed anything identifying him personally while working at the protest in Nutley. This sort of thing never plays well with the public, which often responds by crowdsourcing officer info -- not necessarily to harass officers but to let officers know their efforts to dodge accountability have been undone.

Of course, after this story started getting attention, the Essex County Prosecutor's office announced it was dropping the charges with a weak excuse:

The prosecutor’s office confirmed the five people who were charged and told the Asbury Park Press on Friday that “we concluded there was insufficient evidence to sustain our burden of proof.”

Even though the charges were dropped, this was still a blatant attack on the 1st Amendment rights of protesters -- many of whom may now be scared off from documenting law enforcement activities during these protests out of fear of facing a similar nuisance fight.

The First Amendment protects the right to photograph on-duty officers. It also protects the speech that accompanied the tweeted photo, which only asked for someone to identify the cop, not to encourage violence against the officer. The imagined parade of horrors springing from the identification of Detective Peter "PJ" Sandomenico belongs solely to the minds at the Nutley Police Department, which provided info that the five charged Twitter users failed to dig up. Great job, guys! Perhaps the PD will again be cited for going above and beyond by violating the Constitution to protect an unidentified officer the PD decided to identify on its own. Presumably when the PD does it, it results in less fear for Sandomenico's safety.

Even before COVID-19, the brick and mortar movie industry was already struggling to adapt in the face of technological evolution. Now with a pandemic demolishing theater attendance, companies like AMC Theaters face an accelerated timeline as they attempt to cling to outdated constructs like movie release windows, sticky floors, and seventeen dollar popcorn, which were already showing their age in the 4K streaming era.

Theater chains haven't exactly been handling this pandemic thing all that well. When Comcast Universal began sending its movies straight to home streaming (you know, given that people don't want to die), AMC Theaters CEO Adam Aron threw an apoplectic fit, insisting his chain would never again show a Comcast/Universal movie. After apparently realizing he didn't have any leverage to make those kinds of threats -- and negotiating to get an unspecified cut of the proceeds -- Aron and AMC agreed to a shorter 17-day release window. Baby steps, I guess.

It should go without saying that the scientific consensus is that the pandemic isn't going anywhere, and the problems it's creating are very likely to get worse as it collides with the traditional flu season this fall. Like so many who think they can just bull rush through factual reality and scientific consensus, AMC seems intent on opening a good chunk of its traditional theaters next week, and is hoping to draw crowds by offering 15 cent movie tickets on the first day:

"AMC Entertainment, which owns the chain, said Thursday that it expects to open the doors to more than 100 cinemas — or about a sixth of its nationwide locations — on Aug. 20 with throwback pricing for a day. AMC theaters have reopened in numerous international countries but have remained shuttered in the U.S. since March. The chain touted the reopening as “Movies in 2020 at 1920 Prices."

There's innovating, and then there's just denying the obvious. There's creative adaptation, and then there's business decisions that are literally putting people's lives at risk by encouraging mass public indoor gatherings during an historic pandemic that largely spreads, you know, indoors. Yes, the risk is mitigated somewhat by the fact AMC is requiring people wear masks, but there's obviously no guarantee your fellow theater patrons are going to comply, or that AMC will spend two hours and potential risk making employees enforce mask use in the dark.

Most of the films they'll be showing (Grease, Black Panther, and Back to the Future) are already on home video, so I'm not sure how many folks will be willing to risk death and potential lifelong disability to watch reruns. But hey, this being America, I suppose anything is possible. With all sympathy to theater industry employees, it may be time for AMC Theaters to begin considering a much harder pivot into a business sector that doesn't require denying obvious technological evolution and won't kill or disable its target audience.

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Last year we had a detailed post about judge Lucy Koh's district court ruling that outlined exactly how Qualcomm abused its patents in an anticompetitive way to shake down the entire mobile phone industry for decades. This was in a case that was brought by the FTC and it was a stunning ruling on multiple accounts. First, it's rare for a court to recognize how patents and copyrights grant monopoly rights that can be abused in violation of antitrust rules. Second, it exposed a stunning degree of anticompetitive behavior on the part of Qualcomm.

Unfortunately, this week, the 9th Circuit overturned that ruling, though did so in a somewhat confused manner. Indeed, this ruling may significantly limit any kind of antitrust activity (at least in the 9th Circuit).

There are a lot of details, but the key element at stake was Qualcomm's "no license, no chips" rules. No company could buy Qualcomm chips, which were necessary for mobile devices, without licensing Qualcomm's entire patent portfolio. This snippet from the lower court ruling gives you the basics:

These high royalties reflected an unusual negotiating tactic called "no license, no chips." No one could buy Qualcomm's cellular chips unless they first signed a license to Qualcomm's patent portfolio. And the terms of these patent deals were heavily tilted in Qualcomm's favor.

Once a phone maker had signed its first deal with Qualcomm, Qualcomm gained even more leverage. Qualcomm had the right to unilaterally terminate a smartphone maker's chip supply once the patent licensing deal expired.

"If we are unable to source the modem, we are unable to ship the handset," said Motorola executive Todd Madderom in a deposition. "It takes many months of engineering work to design a replacement solution, if there is even a viable one on the market that supports the need."

That made Qualcomm's customers extremely vulnerable as they neared the expiration of a patent licensing deal. If a customer tried to negotiate more favorable terms—to say nothing of formally challenging Qualcomm's patent claims in court—Qualcomm could abruptly cut off the company's chip supply.

But, it got worse. The licensing terms for the patents required that you paid based on every device sold even if your devices did not include Qualcomm chips. Basically, even if you chose not to use Qualcomm's chips, you still had to pay for them. That seemed obviously anticompetitive, because if someone is already paying for Qualcomm's technology, why then pay another company as well?

However, the 9th Circuit rejects all of that as anticompetitive. Why? Because it says it wasn't anticompetitive, it was just hypercompetitive.

This case asks us to draw the line between anticompetitive behavior, which is illegal under federal antitrust law, and hypercompetitive behavior, which is not.

The ruling opens with a weird hagiography of Qualcomm. I mean, parts of it read straight out of a puff piece advertorial:

Qualcomm’s patent licensing business is very profitable, representing around two-thirds of the company’s value. But Qualcomm is no one-trick pony. The company also manufactures and sells cellular modem chips, the hardware that enables cellular devices to practice CDMA and premium LTE technologies and thereby communicate with each other across cellular networks.

A key part of the ruling is arguing that Qualcomm's "no license, no chip" plan in selling to OEM's is sensible because of the concept of patent exhaustion. If you don't recall, back in 2008, in the LG v. Quanta case, the Supreme Court made the correct call that patent rights "exhaust" upon sale. That is, if I sell my patent-protected widget to Company A, and Company B buys it and includes it in its contraptions, I can't then sue Company B. This makes sense because it's the same chip that was already legally purchased.

Yet, the 9th Circuit panel seems to conclude that this kind of ruling forced Qualcomm into its "no license, no chip" business model. Indeed, the panel seems in awe of such a business model -- jacking up prices and limiting competition by using the Supreme Court's rule as leverage to cut out a key part of the market.

Qualcomm reinforces these practices with its so-called “no license, no chips” policy, under which Qualcomm refuses to sell modem chips to OEMs that do not take licenses to practice Qualcomm’s SEPs. Otherwise, because of patent exhaustion, OEMs could decline to take licenses, arguing instead that their purchase of chips from Qualcomm extinguished Qualcomm’s patent rights with respect to any CDMA or premium LTE technologies embodied in the chips. This would not only prevent Qualcomm from obtaining the maximum value for its patents, it would result in OEMs having to pay more money (in licensing royalties) to purchase and use a competitor’s chips, which are unlicensed. Instead, Qualcomm’s practices, taken together, are “chip supplier neutral”—that is, OEMs are required to pay a per-unit licensing royalty to Qualcomm for its patent portfolios regardless of which company they choose to source their chips from.

But, what does Qualcomm "obtaining the maximum value for its patents" have to do with anything here? The only way to obtain maximum value for your patents is, by definition to be anticompetitive.

And here's where the ruling gets truly bizarre. It says that because the device manufacturers (the OEMs) don't compete with Qualcomm, then it's clearly not anticompetitive.

Although Qualcomm’s licensing and modem chip businesses have made it a major player in the broader cellular technology market, the company is not an OEM. That is, Qualcomm does not manufacture and sell cellphones and other end-use products (like smart cars) that consumers purchase and use. Thus, it does not “compete”—in the antitrust sense—against OEMs like Apple and Samsung in these product markets. Instead, these OEMs are Qualcomm’s customers.

Later it goes even further:

Thus, a substantial portion of the district court’s ruling considered alleged economic harms to OEMs—who are Qualcomm’s customers, not its competitors—resulting in higher prices to consumers. These harms, even if real, are not “anticompetitive” in the antitrust sense...

But... that gets almost everything backwards. First off, for years, antitrust experts have been saying the proper determination of whether or not something is anticompetitive is the impact on its customers. And here, it's clear that Qualcomm is using this bundling policy to jack up the prices (massively) for its customers. It seems like a quintessential example of anticompetitive behavior... and the court says no?

The ruling is worth reading in detail, as it bends over backwards to basically say that nothing that Qualcomm does violates antitrust law, it's all just good business to squeeze as much money as possible out of its patents. It even repeats again that since it doesn't see Qualcomm's actions hurting "competition itself" and merely just some competitors:

... the anticompetitive harm identified must be to competition itself, not merely to competitors.... The FTC identifies no such harm to competition.

Now, there is some reasonable logic to that line. Any kind of competition can harm competitors. If I market myself better than a competitor, that's harm to a competitor, but it's not an antitrust issue. But if that harm to the competitor is because of my monopoly power it's a different story. And here, that is absolutely the case.

Also, there are a few lines in here that, at the very least, might doom any attempts at bringing an antitrust case against companies like Amazon, Google, Apple or Facebook (at least in the 9th Circuit). For example, the court suggests that any new competitor entering the market proves there's no antitrust problem, no matter how well they did in that market, or whether or not they were hindered from obtaining market share through abuse of monopoly power:

The FTC’s conclusion that OEM-level licensing does not further competition on the merits is not only belied by MediaTek and Intel’s entries into the modem chip markets in the 2015–2016 timeframe, it also gives inadequate weight to Qualcomm’s reasonable, procompetitive justification that licensing at the OEM and chip-supplier levels simultaneously would require the company to engage in “multi-level licensing,” leading to inefficiencies and less profit. Qualcomm’s procompetitive justification is supported by at least two other companies—Nokia and Dolby—with similar SEP portfolios to Qualcomm’s.

In finally talking about the fact that Qualcomm is able to use its monopoly position to charge an anticompetitive surcharge, the panel basically says "nah..." because "patent monopolies are cool."

We hold that the district court’s “anticompetitive surcharge” theory fails to state a cogent theory of anticompetitive harm. Instead, it is premised on a misunderstanding of Federal Circuit law pertaining to the calculation of patent damages, it incorrectly conflates antitrust liability and patent law liability, and it improperly considers “anticompetitive harms to OEMs” that fall outside the relevant antitrust markets.

In short: because they have a government granted patent monopoly, it's okay for them to abuse that in anticompetitive ways, and we won't consider it anticompetitive. Or, another way of reading this: patent laws inherently create anticompetitive situations, and we're fine with it. And, tragically, that may be a correct reading of the law, as crazy as it is.

I guess this isn't that surprising. This has been the issue we've had with patents for ages -- that they are a monopoly. And that's why we were excited about the original ruling: finally recognizing that patent monopolies could be as abusive as any monopoly. But, here, the court is basically saying "abusing your patent monopoly is fine by us."

And, really, what this should mean is that we need to fix our patent laws, which are dangerous and harm competition. But... that seems unlikely.

Again, this kind of ruling almost certainly means phone prices will remain much higher than they would be in a competitive market for chips (which is why it's slightly frustrating that I've seen some supposedly "free market" supporters cheering on this ruling). But it might also mean that any antitrust fight against big tech just became significantly more difficult as well. As the court says:

Anticompetitive behavior is illegal under federal antitrust law. Hypercompetitive behavior is not.

Good luck figuring out which one is which.

This may be shocking to hear, but nearly all of the promises AT&T made in the lead up to its $86 billion merger with Time Warner wound up not being true.

The company's promise that the deal wouldn't result in price hikes for consumers? False. The company's promise the deal wouldn't result in higher prices for competitors needing access to essential AT&T content like HBO? False. AT&T's promise they wouldn't hide Time Warner content behind exclusivity paywalls? False. The "$15 TV service" the company repeatedly hyped as a byproduct of the deal? Already discontinued. The idea that the merger would somehow create more jobs at the company? False.

AT&T has laid off 41,000 employees just since it received its 2017, $42 billion tax cut from the Trump administration for doing absolutely nothing (technically, less than nothing, since it fired countless employees and trimmed 2020 CAPEX by around $3 billion). And this week, the company laid off another 600 employees across Time Warner, including employees at HBO and DC Comics:

"The moves are likely to cause anxiety at WarnerMedia, which has reorganized several areas of its business since being acquired by AT&T for about $85 billion in 2018. Since AT&T took over the company formerly known as Time Warner, top executives with years of oversight of distribution, programming and advertising sales have departed. Kilar’s ascension to the CEO role in May has only served to fuel more recalibration."

Granted if you've watched the history of U.S. media and telecom consolidation, this should surprise nobody. The first year or two after such deals are usually filled with empty promises about how "nothing will change" (AT&T brass repeatedly promised Time Warner employees they would have ample resources and creative freedom), only to be followed up by everything changing, and, as is the case when a lumbering telecom monopoly jumps more fully into a creative business it doesn't fully understand, often not for the better.

And while AT&T has hinted that much of this had to do with COVID-19, that's not the case. Most of these moves were either planned for some time, or part of the company's ongoing attempts to shed the massive debt accumulated from the company's spending spree on DirecTV (2015) and Time Warner (2018). Both mergers were supposed to position AT&T as a dominant player in the online video and advertising space. Instead, AT&T has been losing paying TV customers hand over fist after a number of bungled decisions ranging from price hikes on price sensitive cord cutters to bungled streaming branding.

It was yet another example of the perils of a "growth for growth's sake" mindset, blended with yet another example of how lumbering, government-pampered telecom monopolies like AT&T and Verizon just aren't very good at this whole competition and innovation thing.

AT&T's repeated missteps were bad enough that they resulted in an investor backlash, the "retirement" of former AT&T CEO Randall Stephenson, and a newfound focus on firing more people than ever to recover debt. As is often the case, lower and mid-level management has to pay the cost for years of higher level managerial dysfunction. As is also often the case, the majority of press outlets that were eager to parrot AT&T's pre-merger promises are utterly absent when it comes time to tally the human cost of mindless merger mania.

The CBP is going to continue fishing in people's devices, despite federal courts (including the Ninth Circuit Court of Appeals) telling it that suspicionless device searches are unconstitutional. The agency will just have to come up with something approximating suspicion to do it. Its latest Privacy Impact Assessment of its border device search policy gives it plenty of options for continuing its practice of performing deep dives into devices it encounters.

Travelers heading to the US have many reasons to be cautious about their devices when it comes to privacy. A report released Thursday from the Department of Homeland Security provides even more cause for concern about how much data border patrol agents can pull from your phones and computers.

In a Privacy Impact Assessment dated July 30, the DHS detailed its US Border Patrol Digital Forensics program, specifically for its development of tools to collect data from electronic devices.

The number of device searches performed at the border has been increasing exponentially. The DHS has amped up this program in very recent years. In 2015, the CBP searched less than 5,000 devices. In 2018, it searched 33,000.

The Impact Assessment [PDF] leaves the agency with plenty of options for warrantless searches. First of all, being anywhere near a border (in which "near" means "within 100 miles" and "border" means any port of entry, including actual ports and international airports) subjects people and their devices to additional scrutiny without any need to establish reasonable suspicion. As a border control and security agency, the CBP has the power to engage in a number of searches, detainments, and interrogations without worrying too much about Constitutional rights.

Going beyond that, the CBP can also badger people into consent. This is sometimes obtained by telling people they're free to go but their devices aren't. Considering how important some of these are to everyday life, people at checkpoints may agree to a search rather than lose the only thing connecting them to friends, family, legal assistance, job opportunities, bank accounts, employers, etc. The CBP can also search any device it considers "abandoned" without suspicion or probable cause. Finally, if there's no other good reason to do so, the CBP can claim "exigent circumstances" demanded warrantless access. In far too many cases, exigent circumstances just means the government has decided to apologize to a court later rather than ask for permission first.

Here's everything the CBP can pull from a device with or without a warrant:

• Contacts
• Call Logs/Details
• IP Addresses used by the device
• Calendar Events
• GPS Locations used by the device
• Emails; • Social Media Information
• Cell Site Information
• Phone Numbers
• Videos and Pictures
• Account Information (User Names and Aliases)
• Text/chat messages
• Financial Accounts and Transactions
• Location History
• Browser bookmarks
• Notes
• Network Information
• Tasks List

Does this impact privacy? Hell yeah it does! Will the CBP be changing anything about it? Nope. Sorry about that people whose rights we've decided are less important than protecting this nation from incoming visitors and immigrants less likely to be carrying the coronavirus than the proud Americans they'll be encountering once they cross the border. The privacy risk is "mitigated" because [drum roll] the CBP has released this document declaring all the privacy-violating it will be doing:

CBP has provided notice and transparency about its digital forensic program and border search authority by publicly releasing the policy for these searches and publishing this and corresponding PIAs.

Fantastic.

More good news: the DHS and CBP have been unable to show these additional device searches have resulted in additional border security. The program is an unsupervised mess that violates rights without delivering corresponding gains in border protection.

Finally, [CBP's] OFO [Office of Field Operations] has not yet developed performance measures to evaluate the effectiveness of a pilot program, begun in 2007, to conduct advanced searches, including copying electronic data from searched devices to law enforcement databases.

The DHS still isn't checking to see if warrantless device searches are making the nation safer and doesn't plan to in the future. The pot that is never watched troubles no one when it fails to reach a boil.

There are no changes to auditing and accountability as it relates to the new tools.

¯\_(ツ)_/¯

Oh well... carry on, I guess.