We've all been there. You jump on some social media platform having met someone in this existence that passes for real life and fire off a friend request to them. And then you... wait. Sometimes you then wait some more. And then, sometimes, you're left in this terrifying, self-absorbed limbo, having tried to make this connection only to see it never accepted. Your mind races. Why didn't they accept my request? Do they not like me? Is it something I said? I know, you think, I'll just threaten to murder them and go break down their front door!

Wait, what? Well, that appears to be exactly the way that one North Dakota man chose to end his 2020 after a co-worker didn't accept his Facebook friend request.

Caleb Burczyk, 29, pleaded not guilty to felony charges of burglary and terrorizing filed in Williams County District Court Tuesday, Dec. 29. Burczyk’s attorney Jeff Nehring declined to comment on the case.

Police say Burczyk started sending aggressive Facebook messages to his ex-coworker on Dec. 24, according to an affidavit of probable cause. He threatened his ex-coworker’s life and warned him that he was going to “come at” him if he did not accept his Facebook friend request, the affidavit stated.

“Accept my friend request or I’m going to murder you,” Burczyk wrote in a message to his ex-coworker, according to the affidavit.

An addendum PSA: the best way to convince someone to accept your social media connection is probably not to explicitly threaten them with murder if they don't. On top of landing you in legal hot water, most of us just don't want to associate ourselves with folks who threaten to kill us.

Regardless, law enforcement reports that Burczyk proceeded to go to his ex-coworkers home, where there was a security camera, and kicked in the front door. He was arrested afterwards, of course. Given the mountain of physical evidence at hand, it feels like a certainty that he's not going to be found innocent, assuming any of this actually gets to a trial decision.

So stay even, Techdirt friends. A rebuffed social media connection request is nothing to go to jail over.

Richard Liebowitz is infamous as the notoriously inept copyright troll lawyer. He's so bad at his job that he's been sanctioned repeatedly, and recently was suspended from practicing law in the Southern District of NY (his home court). The details of him lying under oath over and over again are simply staggering.

However, you have to give Richard Liebowitz credit for one thing: he's so bad at copyright trolling, that he's set some useful precedents. We wrote about one such case a year and a half ago, where Liebowitz's greed in turning down a settlement offer ended up costing his client a ton.

Now, lawyer Dan Booth (who has gone up against Liebowitz in a variety of cases) points us to another loss by Liebowitz that is actually a win for everyone (and if you're wondering, this ruling (in Arizona) came out before he was suspended in NY. But the ruling is important in highlighting how fair use can protect bloggers who repost articles from elsewhere.

The case was brought by Daniel Fellner, a photographer and journalist, against "Travel 4 All Seasons LLC" which is actually just a hobby website run by Alfred Hague, who admits he's never made any money from the site. While nearly all of the hundreds of Liebowitz trolling lawsuits are filed over photographs, this one was over the fact that Hague reposted part of an article that Fellner had written about.... Pickleball on cruise ships (I don't know what this is, and I don't think I want to know).

Some people like to insist that an article can't possibly be fair use. But that's wrong. A decade ago, in the midst of another highly publicized copyright troll, Righthaven, a court also found that reposting a full article can be fair use (incredibly, in a case where the defendant hadn't initially even raised fair use as a defense!). In this case, while Liebowtiz claimed that Hague reposted Fellner's entire article, the actual evidence suggested that wasn't even true.

And, again, in this case, the judge found that Hague's reposting of Fellner's pickleball article was absolutely fair use. First, of course, the court does the obligatory highlighting of Liebowitz's highly sanctioned record ("Mr. Liebowitz has filed hundreds of similar actions in federal courts throughout the country and has repeatedly been cited for misconduct in this District and in many other federal courts throughout the United States."), highlights his poor lawyering in this case ("During the course of discovery, it appears that Plaintiff requested hardly any discovery, and he did not depose Defendant or its principal, Alfred Hague"), his obvious cut-and-paste from other filings laziness ("Ironically, the vast majority of Plaintiff’s Response appears to have been copied and pasted from other briefs by Mr. Liebowitz, as the Response almost exclusively discusses the theft of photographs, not written text, and most of the law cited is from out of Circuit."), and a final "that's not how you evidence" smackdown:

As an initial matter, Defendant argues that Plaintiff has failed to proffer any admissible evidence to dispute the facts established in the Motion. Plaintiff provided a Declaration of Mr. Liebowitz, unverified interrogatory responses, and copies of the Article. (Doc. 35). Defendant argues that of the evidence provided, only a single statement can be supported with personal knowledge by Mr. Liebowitz, that he is “lead counsel for Plaintiff Daniel Fellner.” (Doc. 35-1). The Court agrees. Plaintiff submitted no authenticated documents, declarations, or admissible evidence of any kind to establish that there are material fact disputes. Under Rule 56(e), if a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may consider the fact undisputed for purposes of the motion. As Plaintiff did not provide any admissible evidence to dispute any facts established by Defendant, the Court determines that there are no material facts in dispute.

Anyway, from there, we get a four factors fair use analysis, and it doesn't go well for Fellner or Liebowitz. Though it does go well for hobbyist/amateur bloggers who repost full articles. Let's go factor by factor. First up: commercial use?

Plaintiff asserts, without supporting evidence, that Defendant profited off of the use of the Article. (Doc. 34 at 12). If Defendant had published the Pickleball Article for a profit-making purpose, such use would be presumptively unfair under this factor. See Harper & Row Publishers, 471 U.S. at 562. The contrary presumption is appropriate here, however. Defendant has established that the Article was not posted for any commercial purpose, and indeed did not make any profit. (Doc. 33-1 at 6). Alfred Hague, sole owner of the website, testified that the website is a blog for travel enthusiasts like himself to read. (Id.) The information on the website was fully accessible to the public and did not require a membership fee. (Id.) Moreover, Defendant has never made a profit from the website and does not have a bank account. (Doc. 33-1 at 6). The Court also considers that Defendant identified Plaintiff as the author of the Article and provided a citation to the original work, in order that any visitor to the website could read the Article in full. (Id. at 7). Defendant has since removed the Article, so it will never earn a profit from it. (Id.) The Court finds this factor weighs in favor of finding fair use.

Factor two, on the nature of the work. This is quite interesting, because the judge argues that since much of the article is just a straight up recitation of facts about pickleball, there is little in here that is creative or even subject to copyright protection at all, and thus it favors fair use.

Plaintiff argues that his Article was not a factual work, but a creative work that only he could have written. (Doc. 34). Moreover, Plaintiff argues that because Defendant did not transform the Article or add commentary to it that this factor favors a finding of copyright infringement. While the work included some of Plaintiff’s opinions, the majority of the work was a summation of the history of pickleball and its current popularity on cruise ships. (Doc. 33-1). For instance, one paragraph explained: “Pickleball is a racket sport that combines elements of tennis, table tennis and badminton. Paddles are made of wood or composite materials; the ball resembles a wiffleball. The sport can be played with two or four players, although doubles is far more common.” (Doc. 33-1 at 3). Another paragraph states: “Pickleball was invented in the 1960s in Washington state, but only recently has seen a huge growth in popularity; it now routinely attracts more players than tennis in age 55 and older housing developments. The USA Pickleball Association, which is headquartered in Surprise, calls it ‘the fastest growing sport in North America.’” (Id.) The Article is much closer to a news story than a motion picture. See Sony Corp., 464 U.S. at 455 n. 40. Moreover, only one of the seven paragraphs published on Defendant’s website contained personal observations from Plaintiff. (Doc. 33-1 at 3). The Court finds that the majority of the Article is factual in nature and not an original piece or a novel. Moreover, while Defendant did not add anything of substance to the Article to substantially transform it, that is not required for a finding of fair use. See Campbell, 510 U.S. at 579 (“[T]ransformative use is not absolutely necessary for a finding of fair use.”). The Court finds this factor weighs in favor of finding fair use.

The third factor, on the amount and substantiality used, you might think would cut against fair use, given that Fellner claimed the full article was reposted. But, as noted above, that wasn't actually true.

Plaintiff’s allegation that Defendant published the entire Article are clearly false. The original Article, published in AZ Central, contained sixteen separated paragraphs. (Doc. 35-3). The evidence is undisputed that Defendant only published seven paragraphs of the Article on the website. (Doc. 33-1 at 3). In terms of the substantiality of the Article published by Defendant, it did contain the main factual portions of the Article, but did not include other more creative portions, such as Plaintiff’s interviews with the president of the national pickleball association, cruise ship activity directors, or cruise ship passengers. (compare Doc. 35-3 and Doc. 33-1 at 3). Therefore, the Court finds this factor slightly favors a finding of fair use.

And finally, what's often considered the most important factor: the impact on the market. Here, the court rightly notes that this isn't harming the market at all. In fact, you can almost hear the judge laughing about this argument:

Plaintiff argues that the market for his work was diminished because of Defendant’s unauthorized publishing of the article. (Doc. 34). Plaintiff has provided no evidence to support this assertion. Plaintiff attempts to label Defendant as a “competing news organization” with the organizations that paid to publish Plaintiff’s article, AZ Central and later, USA Today. USA Today has a daily readership of 2.6 million and has thousands of employees, whereas Mr. Hague is the sole operator of Defendant’s website. Plaintiff has not provided any admissible evidence to suggest that Defendant is a competing news organization of USA Today, such that the Article’s reproduction by Defendant would reduce its economic viability with other large news organizations. It is undisputed that Defendant never made a profit from the Article. (Doc. 33-1 at 6). Moreover, Plaintiff has not established that the unauthorized reproduction reduced Plaintiff’s economic opportunities in the market. See Fisher, 794 F.2d at 438 (holding that “infringement occurs when a[n infringing work] supplants the original in markets the original is aimed at, or in which the original is, or has reasonable potential to become, commercially valuable”). The Court finds this factor weighs in favor of finding fair use.

Put that all together and all four factors lean towards fair use... meaning this is fair use.

At its core, “[f]air use presupposes ‘good faith’ and ‘fair dealing.” Harper & Row Publishers, 471 U.S. at 562. The undisputed facts establish that Defendant did not reproduce the Article to attempt to gain a financial benefit to Plaintiff’s detriment or for any nefarious reason. Defendant simply thought that the topic of pickleball on cruise ships would be interesting to the relatively few readers who visited his website. There is no evidence to suggest that Defendant’s use of the material was anything other than fair, and all four factors weigh in favor of finding fair use. Plaintiff has provided no admissible evidence to the contrary and the Motion for Summary Judgment will be granted.

Thanks, again, to Richard Liebowitz for establishing more good precedent in losing so many of your ridiculous cases.

I spent yesterday quite numb watching the events unfolding in Washington DC, in which an angry mob of insurrectionists -- egged on by the President of the United States, a few key Senators, and certain news media personalities -- literally stormed the US Capitol to try to block the formality of Presidential vote counting or, worse, to overthrow the government. I couldn't write anything. I couldn't take care of other work happening. I was witnessing the kind of history I never thought I would witness. I was angry. I was scared. I was frustrated. But most of all I was disappointed. What can you say after a day like yesterday? Most of what I could say would be covered by everyone else. Indeed, this morning I got to my desk to find that our own Tim Geigner had written the kind of post I originally thought I would write.

So this post will be a little different. It is clear by now that there is no redeeming our President even in his last days in office. He has shown that everything is about him. He literally said "we love you!" to the mob storming the Capitol. It has long been obvious that the only thing he cares about is himself -- and that he views everything through the lens of "does this person like me or not." He does not care about America. He does not care about its people. He cares about people who like him, and those storming the Capitol did so in his name, and he obviously loved it. Because, as stupid and illegal as what they did was, they were showing that they would do stupid and illegal things for him.

However, the real anger needs to be directed as his enablers. His many, many enablers. And it has become obvious that, for many of them, this is a game. This is not about governing. This is not about representing people's interests. This is about red team v. blue team, and doing whatever it takes to win. This is not new, of course. This has been the nature of politics going back centuries. But, in the US, there were at least some limits. Some small bit of idealism, often hidden away in the back corner of the attic, highlighted by the regular peaceful transfer of power even among political enemies, that said: in the end, the greater good is more important than just winning the game.

But, for too many, that has gone away. And winning the game is all that matters -- even if it destroys the entire nation. And for all the complaints I have about the Democratic Party, this is entirely on the Republican Party and its leadership. As I said on Twitter the other day, I actually prefer a divided government that can work on compromise. Despite regular accusations from people that I am whatever they are not, I've never been a member of either party, and I have always tried to support policies that I think will be most effective -- not based on ideology, but on understanding the policy and its likely impact. That's the way governing should work.

But the events of the last few years has shown that for too many in the Republican Party it is 100% about winning. It's not even based on ideology -- as the last four years has shown that their ideology will shift on a dime if they think it will help them win. The party of free trade flipped to be the party of trade wars. The party of small government became a huge supporter of government interference in business operations. Because it was not about ideology, it was about the game. About helping the red team win.

Much of the anger at this approach to "governing" needs to be directed at Mitch McConnell, who made it clear 12 years ago that his single driving ethos was making sure his team won and the other team lost -- and then made all sorts of unprecedented moves to make that happen. But, at least when on the brink, he recognized the pointlessness of continuing to push the myth that Trump actually won when it mattered yesterday. His last minute attempts to stuff that genie back in the bottle yesterday are no excuse, but the true scorn must be reserved for those who couldn't even do that much: Josh Hawley and Ted Cruz. Respected conservative commentator George Will got this part right in his Washington Post column today. Hawley and Cruz should forever be branded as seditionists after egging on and encouraging the events of yesterday, even as they came out late in the day with weak "we didn't mean violence!" statements:

Trump lit the fuse for the riot in the weeks before the election, with his successful effort to delegitimize the election in the eyes of his supporters. But Wednesday’s explosion required the help of Hawley (R-Mo.) and Cruz (R-Tex.).

Hawley announced his intention to object to the certification of some states’ electoral votes, for no better reason than that there has been an avalanche of “allegations” of election irregularities, allegations fomented by the loser of the election. By doing so, Hawley turned what should have been a perfunctory episode in our civic liturgy of post-election civility into a synthetic drama. He turned this moment into the focus of the hitherto unfocused fury that Trump had been stoking for many weeks.

And Cruz, by organizing support for Hawley among other Republican senators and senators-elect gave Hawley’s grotesque self-promotion an ersatz cloak of larger purpose. Shortly before the mob breached the Senate chamber, Cruz stood on the Senate floor. With his characteristic unctuousness, he regretted the existence of what he and kindred spirits have not only done nothing to refute but have themselves nurtured — a pandemic of suspicions that the election was “rigged.”

“I want to take a moment to speak to my Democratic colleagues,” said Cruz. “I understand your guy is winning right now.” Read those weasely words again. He was not speaking to his “colleagues.” He was speaking to the kind people who were at that instant assaulting the Capitol. He was nurturing the very delusions that soon would cause louts to be roaming the Senate chamber — the fantasy that Joe Biden has not won the election but is only winning “right now.”

Here's the important point: we know Trump doesn't understand or care about any of this. That's not true of Hawley or Cruz. They know. They know that Trump is off his rocker. But both of them see this as a game. It's a game they both want to win. They're both famous for their levels of naked greed and ambition to get to the top spot. And both have made the political calculus that the way to win is to egg on a mob of insurrectionists in the hopes that the same mob will support them in the future.

They both know that they are selling out America, harming the public, spreading disinformation, and helping to lead on a mob of insurrectionists. Because they think it's a game and they need to win.

And that's exactly why neither of them should be anywhere near positions of power ever again.

Both were given the biggest tests of their lives yesterday: do you make the right choice? Stand up for the Constitution? Stand up for that buried, hidden, dusty, abandoned-in-the-back-of-the-attic ideal of what America is supposed to be? Or do you take the ambitious but cowardly position of egging on the mob in the hopes that one day they will be your mob? I've criticized both Senators many times over the years because their actions and statements have long predicted this moment.

And, yet... in the back of my head, I still had that slight tinge of optimism that maybe, just maybe, one or both of them might look at what they had wrought and recognize that it's not just a game and that people's lives are at stake, and the very nature of our country is at stake, and come back from the brink and admit that perhaps they had gone too far.

This is what real leadership is about. Real leadership is about making the hard choices. The choices that are right in the face of deluded people telling you to go the other way. Real leadership is about recognizing when you are wrong, admitting it, and understanding why you made that mistake.

But neither Hawley nor Cruz did that. Both continued to attack. Cruz, bizarrely, accused Beto O'Rourke (his vanquished Senate opponent from a few years ago) of pushing for division. That is not reality. Hawley, after giving a now-famous raised fist gesture to the insurrectionist mob, stayed silent for hours before having his press team put out a weak tea statement about how he doesn't support violence. And, as Nilay Patel correctly noted, Hawley issued a much more forceful condemnation of... infinite scrolling apps than he did of the insurrectionist mob that he helped to encourage.

And then, after the invaders were removed from the Capitol, after so much damage had been done, they both had another chance. A chance to admit that America is more than a game to them. They had a chance to show that politics is not just about winning and losing, but about governing and leading and doing the right thing. And they both failed again. They both continued to object to the results of the election that they both absolutely know are legitimate.

And, yes, there remained an astounding number of idiot House Members who also objected -- often spewing debunked conspiracy theories and lies about election fraud that did not happen, and demanding investigations that already happened and proved the conspiracy theories were false -- and they all deserve criticism as well (including the GOP House minority leader, Kevin McCarthy). But the Senate is supposed to be different and better than that. And beyond that, Hawley and Cruz both know better. Neither are stupid. Both have long and well documented careers. Both attended Ivy League universities. Both clerked at the Supreme Court.

They know.

And they chose to treat America like a game.

No one should ever let them forget what they did.

It's Thursday, January 7th, one day after a group of thuggish, Trump-supporting hooligans stormed the nation's Capitol building and attempted to take up residence in the vaunted halls of our self-governance. Already there is an effort to paint this attack on democracy as anything other than what it was: an attempt to either disrupt or overthrow a democratic form of government as dictated by the will of the people. Lin Wood, a lawyer who has been independently creating post-election craziness, suggested the rioters were actually Antifa without evidence, before heading to Parler to claim that a coup was underway. Sarah Palin suggested likewise on Fox News yesterday, while also taking to Twitter to cast doubt on the support these people had for Trump.

This follows weeks and weeks of Trump supporters, political leaders, and elected members of Congress engaging in different flavors of casting doubt on the 2020 election with reckless abandon. And reckless really is the word here. Lindsey Graham, who cynically took to the floor of Congress last night to give a tearful lecture on the importance of respecting our election process and institutions, was accused of calling Georgia election officials weeks earlier, attempting to get legitimate ballots thrown out. Josh Hawley happily waved to the rioters as he headed into the Congressional halls yesterday to voice his nonsense objections to counting electoral college votes, shortly before the rioting began. Ted Cruz likewise lodged objections to the democratic process, all for his own cynical political ambitions. Hours before the rioting began, Rudy Giuliani made reference to "trial by combat" at the rally from where the riots launched in a rambling diatribe claiming the election was stolen. Joe diGenova, Trump Campaign lawyer, was quoted as saying in early December that Trump's Cybersecurity and Infrastructure Security Agency former head, Chris Krebs, should be "taken out and shot" simply for acknowledging that the election was secure after being fired by Trump.

Many, if not all, of these same people have been quick in the recent hours to distance themselves from any actual violence or rioting that occurred. It should be clear that any such distancing is theatrical bullshit. They, be it has-beens like Sarah Palin or President Trump, simply don't get to trade in the rhetoric of violence, doubt-casting, and conspiracy theories only to wipe their hands clean of what they created.

And what they created was a movement based on insurrection and violence. Trump sent those people to the Capitol Building and was only able to do so because of his enablers in the government and media.

The insurrection at the heart of America's democracy, egged on by Trump's rhetoric, represented a stunning show of force for the fringe movements and their adherents. Four people were left dead during the mayhem, according to the Washington, D.C. Metropolitan Police Department, including one woman shot by a U.S. Capitol Police officer and three other people who had medical emergencies.

One of the most recognizable figures in the videos and photos of the chaos on Capitol Hill was a man in his 30s with a painted face, fur hat and a helmet with horns.

That man is a known QAnon figure, Jake Angeli, who goes by the moniker QAnon Shaman. This is a crazy person, as should be obvious. But many, many GOP officials in very high places have played footsie with QAnon theories, whereas others, including newly elected members of Congress, have professed their faith in the theory directly. Other participants included members of hate groups like The Proud Boys, other white supremacist groups, and pro-gun militia groups. One of them managed to sit at Nancy Pelosi's desk for a photo, leaving her a vulgar note. Others managed to sit at the dais of Congressional houses, looking for all the world like an occupying force. Four people died.

All the while, they referred to themselves as patriots and Donald Trump, though telling them to go home, professed his love for them all. Still others made the analogy to the Black Lives Matter protests that occurred over the summer, as though the situations were remotely similar.

They are not patriots. Black Lives Matter never forced its way into The People's House as an occupying force. The wanton tear gassing of protesters that happened over the summer magically never materialized yesterday, save for extremely limited use. The federal response was delayed and lacking in the extreme.

Which is a hell of a way for a modern day America to treat terrorists invading the offices of government. Facebook and Twitter, too often the scapegoat for the actions taken by very real people, suspended Trump's account for the remainder of his term, and yet the powers-that-be haven't managed to ban Trump from office, even as the justification for doing so is right in everyone's faces. Josh Hawley and his band of hapless misfits didn't withdraw their objections to counting electoral ballots, even in the aftermath of the invasion into the Capitol building, still all too happy to play the fiddle that led these snakes to begin with. Other than some throaty words from the mouths of the very people who brought this danger to our door, little changed.

There is a cancer in America and it needs to be excised. Instead, one political party is quite busy figuring out how to make the best use of the tumor and then feigns outrage when the cancer metastasizes.

Don't let them get away with it. Accountability must be a thing and political prices for the danger these people have created must be observed. This is no longer a political game, but a very real struggle to keep our Republic.

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All the cops in the federal shops say "going dark" is a thing. Local cops have much less to say about the issue, even though they've got as much at stake. The FBI can't be trusted to count its own inventory of "locked" devices, so how much of a problem encryption poses is still highly theoretical. Which is the way the FBI and DOJ want it.

We live in a golden age of surveillance. Much of it is self-enabled. Phones track users wherever they go, an unfortunate byproduct of remaining "connected." FOMO has turned dozens of phone apps into unstoppable data generators. In-home devices record conversations, track viewing habits, and record internet usage habits. Wearables provide even more location data, as well as tons of useful biometric info.

Any cop complaining about the "restraints" of device encryption just isn't using their imagination. Cloud services provide cops with backups of conversations they can't access from locked devices. Billions of data points harvested by apps, data brokers, and government contractors give cops tons of info that's escaped the protective measures device owners have deployed to protect their devices.

A recent report by NBC News shows yet another way cops are leveraging "always-on" information gathering to round up criminal suspects, encryption be damned. Investigators hoping to solve the alleged murder of a Michigan resident turned to third parties to gather evidence, using collected data to build a case. The murder victim was dragged behind his vehicle by his neck, resulting in his violent death. His body was covered in abrasions and his skull had been "partially flattened."

At first, investigators were stumped. But then they went searching for information that has never been historically available to law enforcement. Say what you will about "going dark," but for dozens of years, cops have never been able to trace a vehicle -- much less the actions of its occupant -- without actually sending units/officers out to trail someone. And, in a case like this, there was no reason to shadow the person who killed Ronald French, since he wasn't suspected of murder until after the crime happened. Fortunately for law enforcement, "someone" was already trailing the suspect they originally never suspected of anything.

For more than two years, Kalamazoo County sheriff's detectives investigated French's murder without making any arrests. Then, according to police records obtained by NBC News, one of the detectives learned of an emerging field — digital vehicle forensics — which focuses on extracting the treasure trove of data stored in an automobile's onboard computers.

They returned to French's 2016 black Chevy Silverado pickup truck, which had been stolen around the time he vanished, and discovered time-stamped recordings of someone else's voice using the hands-free system to play Eminem on the radio at the time of French's murder.

The newfangled policework combined with old school investigative techniques (interviews, check out alibis, etc.) to produce a suspect. Thanks to information cops have never had access to historically produced a suspect currently facing murder charges. The recordings of his voice were confirmed by relatives, including his wife.

Some of this isn't completely new. Law enforcement officers and insurance investigators have used "black boxes" in cars for years to suss out the details of car accidents. More recently, law enforcement investigators have turned systems like OnStar into literally rolling wiretaps to intercept conversations.

But there's far more information available now. Vehicles allow drivers to sync their cellphones to on-board systems, providing yet another avenue of access to investigators who find themselves locked out of seized devices. There really isn't much in the way of data protection when it comes to vehicles and information-gathering. At some point, these new Constitutional boundaries may be tested in court, but that day hasn't come yet.

Despite arguments to the contrary when facing suppression motions or civil rights lawsuits, law enforcement agencies are keenly aware of which side of the Fourth Amendment bread their bread is buttered. At this point, protections for in-car data collection remain largely unexplored. And it's in that vacuum of precedent that law enforcement will operate. The NBC report notes that a single agency admits it extracts vehicle data like this "three to four times a week." In most cases, this is for routine accident investigation. But there's far more on the line than a citation for a moving violation in other cases -- and those are the cases we need to keep an eye on.

Last March, the Trump FCC put on a big show about a new "Keep America Connected Pledge" to help broadband users during COVID. In it, the FCC proudly proclaimed that it had gotten hundreds of ISPs to suspend usage caps and late fees, and agree to not disconnect users who couldn't pay for essential broadband service during a pandemic. The problem: the 60 day pledge was entirely voluntary, temporary, and because the FCC just got done obliterating its consumer protection authority as part of its net neutrality repeal, was impossible to actually enforce. It was regulatory theater.

The rather meaningless pledge has since expired despite the pandemic only getting worse. And because this FCC doesn't actually care about consumer protection (it literally doesn't even collect data on who is getting kicked offline for nonpayment during a plague), many ISPs simply ignored the pledge, and kicked users offline anyway; even disabled Americans who were told repeatedly by their ISPs that they wouldn't be booted offline for nonpayment during the crisis.

If you hadn't noticed, the COVID health and economic crisis has only gotten worse. Yet most of the ISPs that crowed about the benefits of this performative prattle have also restored their bullshit, arbitrary usage caps, making them a pretty additional penny during a crisis. AT&T, for example, has restored arbitrary usage caps as of January 1:

"The New Year brings unwelcome news for some customers of AT&T’s internet services as the telecom giant ends data cap waivers that were a part of its response to the coronavirus pandemic...on Jan. 1 the 1-terabyte-per-month data limits are back for customers of AT&T Internet, previously known as U-verse Internet."

Americans already pay some of the highest prices in the developed world for broadband. In AT&T's case, you'll pay a high flat-rate price, and then have to pay $10 for each 50 GB consumed over the cap. Many AT&T customers, like their DSL customers (who face ridiculous monthly caps as low as 150 GB), never had the caps waived in the first place:

"Customers who still have AT&T’s oldest and slowest internet service, DSL, did not have their caps waived, which are set at 150 GB per month. Fixed-wireless internet services are capped at 250 GB per month."

We'll say this one more time with feeling: broadband caps have no technical or financial purpose outside of price gouging and anti-competitive leverage in the streaming wars. They don't help manage network congestion. They're not an issue of "fairness," because you're imposing costly and unnecessary new surcharges on all of your users. It's not even really useful as a price differentiator for heavy users, who can already be shoveled to a business-class tier should they feel the need to run multiple servers out of their closet (something modern network management tackles anyway without the need for caps).

If America had functional regulators, you'd be hearing criticism about how monopolies probably shouldn't be engaged in price gouging during an historic health and economic crisis. But not only has the Trump/Pai FCC not followed up on its original pledge, it's not even trying to track how many users are being kicked offline during the crisis due to economic hardship. They've also done absolutely nothing to even lightly criticize ISPs that ignored the original pledge. Again, that's because the Trump GOP couldn't give any less of a shit about consumer protection, despite oodles of breathless pretense to the contrary.

If you want to turn a local crime federal, all you need is the internet. This has been the federal government's M.O. for years: bring federal charges as often as you can because everyone uses the internet to communicate. A plethora of content servers located around the United States makes this easy for prosecutors to use and abuse. Almost every communication -- IM, email, or comment -- passes through a number of servers located miles away from the person now accused of violating federal law.

Taking a local crime federal means enhanced charges and longer sentences, often prompting accused citizens to sign plea deals that will keep them from paying a trial tax that now includes federal sentences for local actions.

A successful challenge to "well, now it's federal" assumptions about internet use has been raised by Michael Golightley -- a man accused of violating federal law for allegedly hacking and threatening his local broadband provider. Golightley, a Lenora, Kansas resident, decided to fight back when his internet service provider (Nex-Tech) removed his online sales listing for supposedly violating the intellectual property rights of unnamed third parties.

Golightley got mad. And got even. Incoherent threats were made. From the Tenth Circuit Appeals Court decision [PDF]:

take my ad down again when my description doesnt violate copy right, i will violate this site by bringing it offline, fix the ad. if u make me upset, i will retaliate, your choice, and im not making a threat im very capable of bringing down this website.

Seems harmless enough, especially considering Nex-Tech still held almost all the power in this relationship. His follow-up "threat" was no more comprehensible.

ip address 24.225.8.90 will be submitted at exostress.in for 24 hours if my demands are not met with in 12 hours, your choice, and remember, you have been warned..

Nex-Tech deactivated the accounts linked to these mostly incoherent threats. However, following a help desk call from yet another account Nex-Tech believed was linked to the earlier threats, Nex-Tech's classified ad service was taken down by a DDoS attack. This went on for the next few days, with DDoS attacks interrupting various Nex-Tech services.

Law enforcement traced the accounts back to Golightley. He was charged with a handful of computer crimes, but the feds made it their business by making claims about "interstate commerce." These charges were brought even though Golightley, a Kansas resident, allegedly targeted a Kansas internet service provider.

The court says the federal prosecutor's assumptions are wrong. There's nothing in this case that indicates any "interstate" communications took place.

Threatening to damage a protected computer in violation of § 1030(a)(7)(A) requires the government to prove, among other elements, that Golightley transmitted at least one of his two threats “in interstate or foreign commerce.” § 1030(a)(7). But Golightley argues that the government failed to present evidence that would allow the jury to reasonably infer that he transmitted any threat in interstate commerce. Instead, he argues, the government merely showed that he transmitted his threats over the internet, which is insufficient to prove the interstate-commerce element.

The government conceded that using the internet is not enough -- by itself -- to support allegations of interstate commerce violations. But that didn't stop the government from arguing the evidence it had actually supported these claims. The court sets it straight, benchslapping it for unjustified assumptions about evidence it didn't actually possess.

The government contends that Golightley sent these messages from his personal email address, ntcsucks@mail.com. Exhibit 5 shows automated correspondence from mail.com to Golightley that Golightley received after creating his ntcsucks@mail.com email address. At the bottom of the email from mail.com is the following trademark notice: Supp. R. 62.

[If you can't see the embed, a copyright notice at the bottom of the mail.com footer says Mail & Media is located in Pennsylvania and the "mail.com" trademark belongs to it.]

The government first suggests Exhibit 4A establishes that Golightley transmitted the threats via his personal mail.com email address. Next, the government suggests that the jury could infer, based on the trademark notice in Exhibit 5, that mail.com’s servers are located in Pennsylvania, or “in a [s]tate nearer Chesterbrook, Pennsylvania.” Lastly, the government builds on this inference, concluding the jury could infer that when Golightley transmitted his emails from his mail.com account, the emails traveled in interstate commerce via mail.com’s out-of-state servers.

There are a lot of government assumptions in play here -- most of them wrong. The Tenth Circuit continues its excoriation:

First, as Golightley correctly points out, the government assumes that the messages in Exhibit 4A came from his personal mail.com email address. But Exhibit 4A does not support the government’s assumption. The messages show that the sender used a form available on Nex-Tech Classified’s online help desk. This form is completed by the user and submitted to Nex-Tech directly from its website. Both threats sent by grass_is_green show that they were sent from the email address “info@nextechclassifieds.com.” And Golightley’s personal email address, ntcsucks@mail.com, appears only as the “Contact Email." As Golightley further notes, given that the sender’s email address is info@nextechclassifieds.com, the threatening messages appear to have originated from Nex-Tech’s own website— meaning that, as Golightley explains, he transmitted the threats by completing an online form on Nex-Tech’s website, and not by emailing Nex-Tech via his personal mail.com email address.

The fact that this communication did not originate from "out of the state" (and that's taking the government's word that a trademark registration from Pennsylvania is "evidence" of interstate commerce) is fatal to the government's arguments -- arguments contradicted by the government's own witness.

Further, the government’s expert witness—a federal forensics examiner who reviewed the digital evidence in this case—testified that someone using Golightley’s cell phone contacted Nex-Tech’s help desk at the time the threats were sent by visiting “the contact portion of the help page for Nex-Tech Classifieds.”

The court says the government needs facts to prove this argument. And it has brought none that support its "interstate commerce" conjecture.

Even when this evidence is viewed in the light most favorable to the government, no rational trier of fact could conclude that it shows Golightley sent the threats from his mail.com email address. And yet, the basic premise of the government’s argument is that the jury could infer the use of interstate commerce because of the use of the mail.com address. Given that this inference assumes facts not in evidence, the government did not produce sufficient evidence to show that Golightley transmitted his threats in interstate commerce.

An assignment of intellectual property rights is not the same thing as establishing originating location, much less a circuitous path through allegedly out-of-state email servers.

The government bases this inference on Exhibit 5’s automated trademark notice stating that the corporate owner of the mail.com trademark is located in Pennsylvania. But the government offers no explanation tethering the location of the corporate trademark owner to the location of its servers.

And there goes one of the feds' charges -- kicked to the curb by its deliberate (and convenient) ignorance about the nature of internet communications.

Because no reasonable juror could have determined that Golightley transmitted his threats in interstate commerce, we vacate his conviction for threatening to damage a protected computer.

And, because the prosecution's closing arguments led to jury instructions that misled jurors as to the nature of the alleged criminal activity and Golitghtley's supposed culpability under federal law, the Appeals Court says the multiple felony convictions can no longer stand. At best, they're misdemeanors. And the district court needs to reconsider and resentence.

Because the instructions did not require the jury to find that Golightley engaged in a course of conduct affecting one or more other computers, we are left with “substantial doubt that the jury was fairly guided” in reaching its verdict Gorrell, 922 F.3d at 1121–22 (quoting Little, 829 F.3d at 1181). We therefore vacate these seven convictions and remand to the district court with instructions to reclassify them as misdemeanors and to resentence Golightley accordingly.

What used to be several felonies is now several lesser crimes. The federal government overstepped, with its prosecutors believing they could lead a court into accepting felony charges just because the alleged criminal acts happened on the internet. They were wrong, which is good news for others facing trumped-up charges just because they did something dumb on the internet, a communication perhaps best known for the sheer quantity of dumb stuff it has enabled. That shouldn't be enough to convert misdemeanors into baseless felonies. And it's good to see a federal court reject the feds' opportunistic thinking.