Veteran Techdirt readers will have been so tempered by stories about Monster Energy playing the trademark bully at this point that the mere mention of the company should cause them to roll their eyes. Still, the history of what we've covered in the Monster's attempt to win the trademark-protectionist championship are still constructive in one very important way: Monster Energy regularly loses these disputes. That in itself shouldn't be terribly surprising; the company's decisions on just how often to enforce the trademark rights it has are often so absurd that it would be a shock if it put together any sort of real winning streak. But what is surprising is when victims of Monster's bullying choose to actually concede to the bullying, given that losing track record.

But it happens, even when the victim is a large enough entity that it could fight if it wanted to. A recent example of this is how Ubisoft changed the name of an upcoming video game after Monster Energy opposed its trademark application for it.

Ubisoft's Gods & Monsters recently underwent some rebranding, switching its name to the demonstrably-worse Immortals Fenyx Rising a few weeks ago. It has gone over like a lead balloon. In fact, it had our team wondering if we should just refuse the new name and stick with the old one!

As uncovered by TechRaptor, Monster Energy opposed Ubisoft's trademark for the title "Gods & Monsters." The logic goes that Monster has enough of a presence within video games that Ubisoft's use could reasonably cause confusion among consumers.

Logic which runs counter to the purpose of trademark law, to how trademark law actually works in terms of market designations, as well as to good business and marketing. Taking those in reverse order: the name change is almost objectively terrible. I have yet to find any publication that thinks the title switch was even a wash for Ubisoft, never mind beneficial. The universal opinion seems to be, and I agree with it, that Ubisoft to one extent or another participated in a bit of self-harm by this rebranding.

Now, on to the actual legal question. The consensus here too seems to be that Ubisoft could have easily have won this battle on the merits, but didn't want to simply to avoid any delay stemming from a legal battle.

Playing armchair attorney, this seems like something Ubisoft probably could've won, no? My guess is that it has less to do with whether or not Ubisoft cared to spend the money on this legal battle, and more to do with just getting the game out on shelves. Immortals has been delayed already, and its sales factor into Ubisoft's fiscal year that ends in March 2021. Fighting a protracted trademark infringement case would further delay the game. Going ahead with the name Gods & Monsters would result in an injunction. Ubisoft may be in the right, but it doesn't have the time to prove it.

Which is all probably true, but only if Ubisoft couldn't have gotten a declaratory judgement when Monster Energy first opposed the trademark application. Because it is quite clear that there is no infringement here. Whatever participation Monster Energy has in the video game space, most of which is mere sponsorship and advertising, it still isn't a maker of video games. Ubisoft should have needed merely to point that out to get its use declared legit. Couple that with the broader question as to whether literally anyone would make the association between a video game called Gods & Monsters and an energy drink company and I would guess getting a court to side with it would have been fairly easy for Ubisoft.

But Ubisoft decided against that route and bowed to Monster Energy's bullying. Which is how we get Immortals Fenyx Rising instead of Gods & Monsters. An objectively worse name. For no reason, other than trademark bullying.

Cool.

Summary: In the early 1990s, facing increased pressure from the commercial sector who sensed there might be some value in the nascent “Internet,” the National Science Foundation began easing informal restrictions on commercial activity over the Internet. This gave rise to the earliest internet companies -- but also to spam. Before the World Wide Web had really taken off, the place where a great deal of internet communication took place was Usenet, created in 1980, which was what one might think of as a proto-Reddit, with a variety of “newsgroups” dedicated to different subjects that users could post to.

Usenet was a decentralized service based on the Network News Transfer Protocol. Users needed a Usenet reader, from which they would connect to any number of Usenet servers and pull down the latest content in the newsgroups they followed. In early 1994, a husband and wife lawyer team, Laurence Canter and Martha Siegel, decided that they would advertise their legal services regarding immigration to the US (specifically help with the infamous “Green Card Lottery” to get a green card to the US) on Usenet.

They hired a programmer to write a perl script that posted their advertisement on 5,500 separate news groups. While cross-posting was possible (a single post designated for multiple newsgroups), this particular message was posted individually to each newsgroup, which made it even more annoying for users -- since most Usenet reader applications would have recognized the same message as “read” in different newsgroups if it had merely been cross-posted. Posting it this way guaranteed that many people saw the message over and over and over again.

It is generally considered one of the earliest examples of commercial “spam” on the internet -- and certainly the most “successful” at the time. It also angered a ton of people. According to Time Magazine, Canter and Siegel faced immediate backlash:

In the eyes of many Internet regulars, it was a provocation so bald-faced and deliberate that it could not be ignored. And all over the world, Internet users responded spontaneously by answering the Spammers with angry electronic- mail messages called "flames." Within minutes, the flames -- filled with unprintable epithets -- began pouring into Canter and Siegel's Internet mailbox, first by the dozen, then by the hundreds, then by the thousands. A user in Australia sent in 1,000 phony requests for information every day. A 16-year-old threatened to visit the couple's "crappy law firm" and "burn it to the ground." The volume of traffic grew so heavy that the computer delivering the E-mail crashed repeatedly under the load. After three days, Internet Direct of Phoenix, the company that provided the lawyers with access to the Net, pulled the plug on their account.

It wasn’t just Usenet users. Immigration lawyers were also upset in part because Canter and Siegel were asking for money to do what most people could easily do for free:

Unfortunately, it also provided an opportunity for charlatans to charge exorbitant fees to file lottery entries for hopeful immigrants.

In truth, all it took to enter the drawing was a postcard with your name and address mailed to the designated location.

Canter and Siegel, a husband-and-wife law firm, decided to join the lottery frenzy by pitching their own overpriced services to immigrant communities.

The two were unrepentant, later claiming they made over $100,000 from the advertisement. They quickly set up a new company called “Cybersell” to do this for others -- and signed a contract to write a book for HarperCollins originally called "How To Make A Fortune On The Information Superhighway."

Decisions to be made by Usenet server providers:

• Would they need to start being more aggressive in monitoring and moderating their newsgroups?
• Would it even be possible to prevent spam?
• Should they even carry news groups that allowed for open contributions?

Decisions to be made by ISPs:

• Should they allow Canter and Siegel to use their internet access to spam newsgroups?
• How should they handle the backlash from users angry about the spam campaigns?

Questions and policy implications to consider:

• What is the boundary between allowed commercial speech or advertising and spam? How do you distinguish it?
• Is it possible to have distributed systems (as opposed to centralized ones) that don’t end up filled with spam?
• What are the legal implications of spam?

Resolution: Canter and Siegel remained a scourge on the internet for some time. Various service providers were quick to kick them off as soon as it was discovered that they were using them. Indeed, many seemed willing to talk publicly about their decisions, such as Netcom, which shut down their account soon after the original spam happened and after Canter and Siegel had announced plans to continue spamming:

NETCOM On-Line Communications has taken the step of cancelling the service of Laurence Canter of Canter and Siegel, the lawyer commonly referred to as the "Green Card Lawyer". Mr. Canter had been a customer of NETCOM in the past. He had been cautioned for what we consider abuse of NETCOM's system resources and his systematic and willful actions that do not comply with the codes of behavior of USENET.

Mr. Canter has been widely quoted in the print and on-line media about his intention to continue his practice of advertising the services of his law firm using USENET newsgroups. He has also widely posted his intention to sell his services to advertise for others using the newsgroups. We do not choose to be the provider that will carry his messages.

That link also has notices from other service providers, such as Pipeline and Performance Systems, saying they were removing internet access.

Others focused on trying to help Usenet server operators get rid of the spam. Programmer Arnt Gulbrandsen quickly put together a tool to help fight this kind of spam by “cancelling” the messages when spotted. This actually helped establish the early norm that it was okay to block and remove spam.

As for Canter and Siegel, they divorced a couple years later, though both kept promoting themselves as internet marketing experts. Canter was disbarred in Tennessee for his internet advertising practices, though he had already moved on from practicing law. Cybersell, the company they had setup to do internet advertising, was apparently dissolved in 1998.

Though it doesn't grab the same headline attention as the silly and pointless TikTok ban, the lack of security and privacy standards in the internet of things (IOT) is arguably a much bigger problem. TikTok is, after all, just one app, hoovering up consumer data in a way that's not particularly different from the 45,000 other international apps, services, governments, and telecoms doing much the same thing. The IOT, in contrast, involves millions of feebly secured products being attached to home and business networks every day. Many also made in China, but featuring microphones and cameras.

Thanks to a laundry list of lazy companies, everything from your Barbie doll to your tea kettle is now hackable. Worse, these devices are now being quickly incorporated into some of the largest botnets ever built, resulting in devastating and historic DDoS attacks. In short: thanks to "internet of things" companies that prioritized profits over consumer privacy and the safety of the internet, we're now facing a security and privacy dumpster fire that many experts believe will, sooner or later, result in some notably nasty results.

To that end, the House this week finally passed the Internet of Things Cybersecurity Improvement Act, which should finally bring some meaningful privacy and security standards to the internet of things (IOT). Cory Gardner, Mark Warner, and other lawmakers note the bill creates some baseline standards for security and privacy that must be consistently updated (what a novel idea), while prohibiting government agencies from using gear that doesn't pass muster. It also includes some transparency requirements mandating that any vulnerabilities in IOT hardware are disseminated among agencies and the public quickly:

"Securing the Internet of Things is a key vulnerability Congress must address. While IoT devices improve and enhance nearly every aspect of our society, economy and everyday lives, these devices must be secure in order to protect Americans’ personal data. The IoT Cybersecurity Improvement Act would ensure that taxpayers dollars are only being used to purchase IoT devices that meet basic, minimum security requirements. This would ensure that we adequately mitigate vulnerabilities these devices might create on federal networks."

Again, it's not going to get the same attention as the TikTok pearl clutching, but it's arguably more important.

The IOT is a simultaneously a successful sector while at the same time suffering from a form of market failure. I come back a lot to this Bruce Schneier blog post because I think it explains IOT dysfunction rather well:

"The market can’t fix this because neither the buyer nor the seller cares. The owners of the webcams and DVRs used in the denial-of-service attacks don’t care. Their devices were cheap to buy, they still work, and they don’t know any of the victims of the attacks. The sellers of those devices don’t care: They’re now selling newer and better models, and the original buyers only cared about price and features. There is no market solution, because the insecurity is what economists call an externality: It’s an effect of the purchasing decision that affects other people. Think of it kind of like invisible pollution."

One problem is that consumers often don't know what they're buying because sellers aren't transparent, which is why groups like Consumer Reports have been working on an open source standard to include security and privacy issues in product reviews. Another big problem is that these devices are rarely designed with GUIs that provide transparent insight into what these devices are doing online. And unless users have a semi-sophisticated familiarity with monitoring their internet traffic via a router, they likely have no idea that their shiny new internet-connected doo-dad is putting themselves, and others, at risk.

Fixing the IOT requires collaboration between consumers, vendors, governments, and security experts, and so far that coordination has been patchy at best. Instead of developing policies and standards that address an entire sector's worth of security and privacy problems, the U.S. adores hyperventilating about individual threats (see: TikTok) then pushing policies (see: the TikTok ban) that don't actually accomplish that much. U.S. data privacy and security is a problem that requires a much wider view, instead of this bizarre, inconsistent consternation that's more ADHD Whac-a-Mole than serious policy.

The federal government's Office of Legal Counsel (OLC) tells government agencies what they can and can't do under existing law. Its interpretation of these laws may vary significantly from how they've been interpreted by courts. The OLC has been asked to justify everything from warrantless searches to extrajudicial killings. The bespoke law interpretations that justify these actions are then withheld from the public -- often for decades at a time.

The OLC has refused to turn these over to FOIA requesters, citing a number of FOIA exemptions. It does this with older decisions as well -- ones Congress has said must be released to the public. 2016's amendment of the Freedom of Information Act prohibits agencies from withholding "deliberative" records -- which is much of what the OLC produces -- that are over 25 years old. The OLC violated this change in the law immediately, prompting a lawsuit by the Knight Institute that the Institute ultimately won.

But it wasn't the only lawsuit brought against the OLC by the Knight Institute over FOIA violations. The OLC was also sued for violating the "reading-room provision," which obligates agencies to process and release certain documents, even in the absence of a FOIA request for these documents. The OLC has refused to do this. The court said the OLC's refusal to comply was good and lawful, but only for some subsets of its document stash. The litigation continued to determine what was exempt and what was subject to proactive release.

In October 2017, the district court granted the government’s original motion to dismiss but afforded the Campaign for Accountability an opportunity to focus more narrowly on specific categories of OLC opinions. The Knight Institute filed an amended complaint highlighting several categories of OLC opinions — those (i) resolving interagency disputes; (ii) interpreting nondiscretionary legal obligations; (iii) finding particular statutes unconstitutional; and (iv) adjudicating or determining individual rights.

The court has now handed down its ruling [PDF] and it agrees with the Knight Institute and its co-plaintiff, Campaign for Accountability (CfA) on one category of OLC opinions:

[F]or now, the Court finds that CfA’s amended complaint contains a plausible allegation that OLC is required to make its opinions that resolve inter-agency disputes available for “public inspection” under section 552(a)(2) of the FOIA, for the reasons explained above, and that the other categories of OLC opinions identified in the amended complaint do not plausibly violate the FOIA’s reading-room provision.

The court says these documents are likely "final opinions" (which would make sense, since they "resolve disputes") and subject to the proactive release obligations contained in the "reading-room provision." This could prompt a flood of releases. The Knight Institute estimates these resolution opinions make up about a quarter of all opinions sent by the OLC to other agencies.

Then again, it may not result in much of anything. The OLC spent most of the Obama years watching its workload dwindle as agencies became more worried about the possibility of legal opinions being released to FOIA requesters than with ensuring their actions were lawful. OLC opinions dropped from ~30/year at the beginning of Obama's presidency to less than 10/year by 2015. The end result of years of litigation could be a small handful of opinions that won't do much to inform the public about how the OLC interprets existing laws.

But the precedent set here is worth celebrating. An entire category of OLC opinions has been declared subject to proactive release by the Office. And that's a much-needed improvement.

Famed law professor Alan Dershowitz is at it again. He's now suing CNN for defamation in a SLAPP suit, because he's upset that CNN did not provide an entire quote he made during the impeachment trial before the US Senate, claiming that because he was quoted out of context, it resulted in people believing something different than what he actually meant with a quote. Reading the lawsuit, the argument is not all that different from the defamation claim made by another Harvard Law professor, Larry Lessig, earlier this year, in which he accused the NY Times and a reporter there of defamation for taking his comments out of context. Lessig later dropped that lawsuit.

In both cases, these law professors are effectively arguing that when they make convoluted arguments, you must include all of the nuances and context, or you might face defamation claims. That's incredibly chilling to free speech, and not how defamation law works. Dershowitz's complaint is that during the trial, he made the following claim:

“The only thing that would make a quid pro quo unlawful is if the quo were somehow illegal. Now we talk about motive. There are three possible motives that a political figure could have. One, a motive in the public interest and the Israel argument would be in the public interest. The second is in his own political interest and the third, which hasn’t been mentioned, would be his own financial interest, his own pure financial interest, just putting money in the bank. I want to focus on the second one for just one moment. Every public official that I know believes that his election is in the public interest and, mostly you are right, your election is in the public interest, and if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment."

Dershowitz is upset that CNN aired a segment that showed just that final sentence:

Every public official that I know believes that his election is in the public interest and, mostly you are right, your election is in the public interest, and if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.

But here's the thing: CNN also did air the full segment. And Dershowitz admits this. He's just upset that at other times they only aired part of it, and that some commentators don't paraphrase it the way he wanted them to. Here's where he admits that CNN did, in fact, air the entire clip:

Immediately after Professor Dershowitz presented his argument, CNN employees, Wolf Blitzer and Jake Tapper, played the entire clip properly, so CNN knew for certain that Professor Dershowitz had prefaced his remarks with the qualifier that a quid pro quo could not include an illegal act. That portion then disappeared in subsequent programming.

It disappeared because the longer quote is long, and people were focused on the key part -- that final sentence. Many people -- including some on CNN -- mocked Dershowitz for those remarks. Because they're ludicrous. Even with the full paragraph. But the mockable part is the final sentence, and that's why it's news. And the CNN commentators who mocked it were commentators -- people paid to give their opinion on what Dershowitz said.

But, as with Lessig's lawsuit, the complaint from Dershowitz is that commentator's opinions about what was said differs from what was meant. But opinions cannot be defamatory. And if people misinterpreted what Dershowitz said, that's on Dershowitz for not explaining it clearly enough. We're in a world of trouble if people get to sue for defamation every time someone misunderstands their poorly made argument.

I can understand why it's frustrating for people to completely misunderstand your argument. It happens all the time to lots of people -- including myself. It happens quite often when people try to make carefully nuanced arguments. But misunderstanding, or even misrepresenting, a more nuanced argument is not defamation. And nothing in Dershwotiz's lawsuit changes that.

Dershowitz's lawsuit hangs its hat on the Masson v. New Yorker Supreme Court ruling from 1991. Dershowitz's complaint describes that ruling as follows:

... the Court held that a media organization can be held liable for damages when it engages in conduct that changes the meaning of what a public figure has actually said. While Masson involved the use of quotation marks to falsely attribute words to Jeffrey Masson, the law that the case created is broad, and unequivocally denies first amendment protections to a media organization that takes deliberate and malicious steps to change the meaning of what a public figure has said. That is exactly what CNN did when it knowingly omitted the portion of Professor Dershowitz’s words that preceded the clip it played time and time again.

This is... not an accurate portrayal of the Masson case or ruling. And, yes, I recognize that there's some irony in Dershowitz claiming its defamation to misrepresent himself while his lawsuit then misrepresents a key Supreme Court case that it relies on. The Masson case is a fun one to read. In involves an article (and then a book made out of the article) about an academic where it appears that the author didn't just selectively quote the academic, but made up quotes. The ruling compares the quotes in the article to the tape recordings of interviews to note just how different the quotes in the story are from what was actually said. That's... not what is happening here. It is true that one of the quotes in the Masson case involved selectively excising some of a quote, but that was done in a truly egregious way. It wasn't that they left out context, it was that they excised a middle portion, to make a later portion appear that it was referring to something much earlier, rather than what was excised.

That is... not what happened to Dershowitz. Indeed, the Masson ruling works against Dershowitz in many ways. It actually says that you have to expect the press to take your long rambling comments and tighten them up, because that's part of journalism:

Even if a journalist has tape-recorded the spoken statement of a public figure, the full and exact statement will be reported in only rare circumstances. The existence of both a speaker and a reporter; the translation between two media, speech and the printed word; the addition of punctuation; and the practical necessity to edit and make intelligible a speaker's perhaps rambling comments, all make it misleading to suggest that a quotation will be reconstructed with complete accuracy. The use or absence of punctuation may distort a speaker's meaning, for example, where that meaning turns upon a speaker's emphasis of a particular word. In other cases, if a speaker makes an obvious misstatement, for example by unconscious substitution of one name for another, a journalist might alter the speaker's words but preserve his intended meaning. And conversely, an exact quotation out of context can distort meaning, although the speaker did use each reported word.

In all events, technical distinctions between correcting grammar and syntax and some greater level of alteration do not appear workable, for we can think of no method by which courts or juries would draw the line between cleaning up and other changes, except by reference to the meaning a statement conveys to a reasonable reader. To attempt narrow distinctions of this type would be an unnecessary departure from First Amendment principles of general applicability, and, just as important, a departure from the underlying purposes of the tort of libel as understood since the latter half of the 16th century. From then until now, the tort action for defamation has existed to redress injury to the plaintiff's reputation by a statement that is defamatory and false.

In the Masson case, the Court did find that many of the changes to the text, including that one section, involved a "material" difference in meaning, and therefore could be found defamatory by a jury. But this case is very, very different than what Dershowitz is claiming about CNN. They didn't quote his whole line, but there is no requirement they quote his entire argument.

Then there's the whole damages bit. According to Dershowitz, his reputation was damaged to the tune of $300 million because some people made fun of him on CNN, and it's all their fault that they didn't understand his poorly made argument. The fucking entitlement of this guy.

The damage to Professor Dershowitz’s reputation does not have to be imagined. He was openly mocked by most of the top national talk show hosts and the comments below CNN’s videos show a general public that has concluded that Professor Dershowitz had lost his mind.

Being mocked on TV is proof of damages? Really, now? How fragile is Dersh's ego here? Multiple times in the lawsuit, Dershowitz's lawyer (yes, he found an actual Florida man lawyer to file this lawsuit) talks about how only playing part of his long silly answer would lead people to believe that Dersh had "lost his mind":

The very notion of that was preposterous and foolish on its face, and that was the point: to falsely paint Professor Dershowitz as a constitutional scholar and intellectual who had lost his mind. With that branding, Professor Dershowitz’s sound and meritorious arguments would then be drowned under a sea of repeated lies.

If only airing one sentence of your preposterous argument makes you look like you've lost your mind, perhaps the problem is in how you frame your arguments.

This is yet another SLAPP suit. Florida has an anti-SLAPP law, but it's a mixed bag in terms of how strong it is. Of course, as with many SLAPP suits, the real goal is likely to just be intimidation, rather than to actually win a vexatious nonsense lawsuit.

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This morning the Commerce Department released the details of how the WeChat and TikTok bans will work. It's possible that the ban on TikTok will get lifted if Treasury Secretary Mnuchin can convince enough people in the administration to buy into the grifty Oracle non-sale, but the WeChat ban is happening no matter what.

The details reinforce two key points:

1. This is way unconstitutional and should be offensive to any 1st Amendment/free speech supporter.
2. The excuses about national security are utter and total garbage, because this would actually make users of those apps significantly less secure.

So, great. We have some applications bans, premised on national security, that are unconstitutional piles of garbage that make people less secure, and the only possible path out is through a grifty deal, pushed deliberately to a large donor to the President, who has said multiple times he's hoping for a kickback on the deal. We're witnessing an astounding bit of corruption right here.

Here's how the "ban" will work. First up, both apps get banned from all US app stores. The following is listed as "prohibited."

Any provision of service to distribute or maintain the WeChat or TikTok mobile applications, constituent code, or application updates through an online mobile application store in the U.S.

That's basically saying: "Apple and Google can no longer put those apps in their app stores." There are 1st Amendment concerns here, in that the executive branch is telling software companies what code they can or cannot host. While the IEEPA law under which this order is being made is broad, this seems ripe for a huge 1st Amendment challenge. The President should not be able to simply ban code from app stores based on an unsubstantiated claim of "national security."

Second, not only is this all based on unsubstantiated claims of national security, the very text proves how that's bullshit. The fact that these app stores can no longer issue updates means that people who have the apps currently can continue using them, but if there's a security update (say to patch a vulnerability) users can no longer patch those apps. If the goal of this ban is to "protect national security," everything here is exactly the opposite of that. Users will still have the app, but are unable to protect themselves and can only keep using the app if they accept the obsolete and increasingly less secure version of it.

In other words: the whole "national security" claim is a total lie, because the way the ban is implemented gives Americans less security. That sure is one way to fight back against supposed Chinese surveillance through these apps. If it's even true that China is spying on people via apps, they're now in a "don't throw me in the briar patch" situation -- since the US government is forcing these apps to be less secure and to expose even more data to whoever has it.

Another part of the ban that raises significant 1st Amendment issues is that it prohbits:

Any utilization of the mobile application’s constituent code, functions, or services in the functioning of software or services developed and/or accessible within the U.S.

Translating that: it means that no US developer can use WeChat or TikTok's APIs or build software using any of their code. That's deliberately interfereing with the speech of Americans. Leaving aside the issue of whether or not banning apps that allow for communications is a 1st Amendment issue. Leaving aside the issue of whether or not banning apps at all is a 1st Amendment issue. This goes even further: it says that US-based software developers cannot write the code they want. That's a huge 1st Amendment issue.

I discussed this a few months ago but the Supreme Court has already said that code is speech in Brown v. Entertainment Merchants Association (the case about whether or not the government could regulate video games and require age warnings). And, while it's not the Supreme Court, the 2nd Circuit has been even more direct about code being speech protected by the 1st Amendment in the the Universal v. Corley case (about whether or not you could publish code that breaks DRM):

Communication does not lose constitutional protection as "speech" simply because it is expressed in the language of computer code. Mathematical formulae and musical scores are written in "code," i.e., symbolic notations not comprehensible to the uninitiated, and yet both are covered by the First Amendment. If someone [*446] chose to write a novel entirely in computer object code by using strings of 1's and 0's for each letter of each word, the resulting work would be no different for constitutional purposes than if it had been written in English. The "object code" version would be incomprehensible to readers outside the programming community (and tedious to read even for most within the community), but it would be no more incomprehensible than a work written in Sanskrit for those unversed in that language. The undisputed evidence reveals that even pure object code can be, and often is, read and understood by experienced programmers. And source code (in any of its various levels of complexity) can be read by many more. Ultimately, however, the ease with which a work is comprehended is irrelevant to the constitutional inquiry. If computer code is distinguishable from conventional speech for First Amendment purposes, it is not because it is written in an obscure language.

Later in that ruling:

Computer programs are not exempted from the category of First Amendment speech simply because their instructions require use of a computer. A recipe is no less "speech" because it calls for the use of an oven, and a musical score is no less "speech" because it specifies performance on an electric guitar. Arguably distinguishing computer programs from conventional language instructions is the fact that programs are executable on a computer. But the fact that a program has the capacity to direct the functioning of a computer does not mean that it lacks the additional capacity to convey information, and it is the conveying of information that renders instructions "speech" for purposes of the First Amendment.

Based on all of that, it is difficult to see how this broad ban can possibly stand up to 1st Amendment scrutiny on multiple levels. The banning of US developers coding using these companies APIs is a 1st Amendment violation. The ban on US companies hosting their code is a 1st Amendment violation. The ban on apps used for speech is likely a 1st Amendment violation (on par with breaking up printing presses). So, these bans appear to violate the 1st Amendment in multiple different ways.

And for what? The claim is "to protect national security." We already knew that was bogus, and all of the info anyone can get from TikTok is already widely available for purchase. But now with the details coming out, in which it would make the data of US users of these services even less secure by banning updates, we have even more evidence that the national security claims are joke.

And thus, the bans are likely unconstitutional on multiple different grounds, have no national security purpose based on multiple different problems with the deal, and don't seem to do anything other than potentially put a lucrative business deal in the pocket of a top Trump supporter. How is there anyone out there who thinks this is a reasonable thing?

As economists and experts had warned, the recent $26 billion Sprint T-Mobile merger effectively decimated the prepaid space. T-Mobile had already laid off around 6,000 employees at its Metro Prepaid division, with more layoffs expected. Many of the "mobile virtual network operators" that operated on Sprint's network now face an uncertain future, with growing resentment in the space among prepaid vendors, who say T-Mobile is already using its greater size and leverage to erode commissions and to renegotiate their contracts for the worse. Many prepaid vendors are calling for help that most certainly won't be coming any time soon from the Trump Federal Trade Commission (FTC) and Department of Justice’s Antitrust Division.

With that as backdrop, another major effort at wireless consolidation has emerged with Verizon's announced purchase of Tracfone, one of the biggest prepaid vendors in the U.S. The $6.2 billion deal will, Verizon insists, result in "exciting and compelling" products in the years to come:

Yes, if there's one word that American consumers have come to associate with major telecom mergers, it's "excitement."

The problem here, of course, is that the direct result of mindless M&A in the U.S. telecom space couldn't be any more apparent. Less overall competitors means less effort to seriously compete on price. And the MVNO space had already been under relentless assault by companies like Verizon that have slowly but surely done their best to elbow out any smaller players that dare seriously compete on price with the major networks they must rely on to survive.

With the postpaid market saturated, wireless players are now forced to eek out growth wherever possible. In this case, via acquisitions, followed by only a superficial continued dedication to prepaid wireless lower-priced offerings. As part of the Tracfone deal, Verizon not only nabs 21 million Tracfone customers, but the company's Net 10, Walmart FamilyMobile, SafeLink, Simple Mobile, Straight Talk Wireless, and Clearway prepaid brands as well.

Fewer major networks means less incentive than ever to negotiate on rates, roaming, or much of anything else. With Sprint (the most friendly company to MVNOs by a wide margin) now out of the picture, things have gotten more treacherous for smaller MVNOs than ever. Of course, if the U.S. stays close to its historical norm, in about five years U.S. wireless data (pre and postpaid alike) will be significantly higher, and everybody will be left standing around with a dumb look on their collective faces wondering what went wrong.

Everyone agrees elections should be secure. But hardly anyone in the federal government is doing anything useful about it. The shift to electronic voting has succumbed to regulatory capture which isn't doing anything to ensure the best and most secure products are being deployed. On top of that, it's become a partisan issue at times, resulting in legislators scoring political points rather than making voting and voters more secure.

There may be some good news on the way, although it's unlikely to result in a more secure election in 2020. As Maggie Miller reports for The Hill, political differences have been stowed away for the moment to push an election security bill forward.

The House on Wednesday unanimously passed bipartisan legislation intended to boost research into the security of election infrastructure.

The Election Technology Research Act would establish and fund a Center of Excellence in Election Systems at the National Institute of Standards and Technology (NIST) to test the security and accessibility of voting equipment, along with authorizing NIST and the National Science Foundation to carry out research on further securing voting technology.

The bill [PDF] made its debut last year, but hasn't gone anywhere since February 2020. Now, with an election right around the corner, the bill is finally moving again. This is still pretty last minute, though. The Senate still has to deliver its own version. And it appears to be in no hurry to do that. Earlier this year, the Senate majority blocked three election security bills, adding them to the pile of legislation Senate Majority Leader Mitch McConnell doesn't care for.

Even with bipartisan support, one ranking House member thinks the bill just creates more problems.

Rep. Rodney Davis (R-Ill.), the ranking member of the House Administration Committee, expressed reservations about the legislation on the House floor Wednesday, saying that his panel had not held a markup or hearing on the bill and noting concerns about the legislation potentially undermining work by the Election Assistance Commission.

This may be a legitimate concern, but it could just be political posturing. Recent history shows the head of the EAC did more to undermine the EAC's work than any outside election security efforts.

Brian Newby, the executive director of the Election Assistance Commission, has blocked important work on election security, micromanaged employees’ interactions with partners outside the agency and routinely ignored staff questions, according to former election officials, former federal employees and others who regularly work with the agency.

Newby failed to secure the EAC votes needed to serve another term. He exited the EAC last September, leaving behind a legacy of not giving a damn about election security.

The Election Assistance Commission has ceded its leadership role in providing security training, state and local officials say, forcing them to rely on the help of the U.S. Department of Homeland Security, which lacks the same level of experience in the issues confronting the country’s voting systems.

[...]

The election officials assert that the EAC’s executive director, Brian Newby, has blocked the travel of key staffers at the EAC who specialize in cybersecurity, preventing them from attending what training sessions have taken place.

Given this, it's hard to imagine legislation that ropes in the NIST and NSF causing more problems for election security than the Election Assistance Commission has created itself.

Even if this bill lands on the President's desk in time for this year's election, it won't make this one any more secure. The changes won't be implemented immediately and a report on current security measures and processes won't be provided to Congress for another 18 months. But it should make things better going forward, even if it will be off to a slow start. It finally adds actual researchers to the mix, which should hopefully keep this from becoming a political football every 2-4 years.