A ballot measure introduced by a bipartisan group of Michigan legislators is sure to encounter some heavy resistance on its trip through the lawmaking machinery. The proposal amends the state's constitution to add a warrant requirement to data that law enforcement is used to obtaining without one.

House Joint Resolution C (HJRC) was introduced by Rep. Jim Runestad (R-White Lake) along with 11 bipartisan co-sponsors. If approved, voters would have the opportunity to alter Article 1, Section 11 of the Michigan state constitution in the following manner:

The person, houses, papers, and possessions, and electronic data and communications of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things or to access electronic data or communications shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.

The phrase "electronic data" covers a lot of things normally considered to be "third-party records" and currently given little to no protection under the Fourth Amendment. This amendment would establish an expectation of privacy in electronic communications and data -- at least under the state's constitution.

If passed, courts will have to consider the implications of the state's more stringent privacy protections when dealing with the admissibility of electronic data/communications. This means state law enforcement partnerships with federal agencies could result in unprosecutable charges if any evidence is derived from the warrantless acquisition of protected data and communications. In practical terms, this may not change much, as the feds will just bring the case to federal court in order to (hopefully) bypass the state's more restrictive constitution.

But, as the Tenth Amendment Center points out, if the new law passes, it will discourage local law enforcement from helping themselves to data harvested by federal surveillance programs.

Because the federal government relies heavily on partnerships and information sharing with state and local law enforcement agencies, passage the amendment could potentially hinder federal surveillance programs that depend on state cooperation and information gathering.

State and local law enforcement agencies regularly provide surveillance data to the federal government through ISE and Fusion Centers. They collect and store information from cell-site simulators (AKA “stingrays”), automated license plate readers (ALPRs), drones, facial recognition systems, and even “smart” or “advanced” power meters in homes. Requiring warrants to gather such data would undoubtedly limit the amount of information collected by state and local law enforcement. Information that doesn’t exist cannot be shared with the feds.

If "electronic data" is defined in such a way to include data gathered en masse by electronics, this would institute a warrant requirement for ALPR deployment and would make pen register orders demanding historical cell site data a thing of the past.

The constitutional amendment has a long way to go before it's ratified. Hopefully, it will make its way through the process mostly intact.

Once exclusively the domain of hospitals with comically-bad IT support, crippling ransomware attacks are increasingly beginning to impact essential infrastructure. Just ask the San Francisco MTA, whose systems were shut down entirely for a spell last fall after a hacker (with a long history of similar attacks) managed to infiltrate their network, forcing the MTA to dole out free rides until the threat was resolved. Or you could ask the St. Louis public library network, which saw 16 city branches crippled last month by a bitcoin-demanding intruder.

We've also seen a spike in ransomware attacks on our ever-expanding surveillance and security apparatus, DC Police acknowledging this week that 70% of the city's surveillance camera DVRs were infected with malware. The infection was so thorough, DC Police were forced to acknowledge that city police cameras were unable to record much of anything during a three day stretch last month:

"Hackers infected 70 percent of storage devices that record data from D.C. police surveillance cameras eight days before President Trump’s inauguration, forcing major citywide reinstallation efforts, according to the police and the city’s technology office. City officials said ransomware left police cameras unable to record between Jan. 12 and Jan. 15. The cyberattack affected 123 of 187 network video recorders in a closed-circuit TV system for public spaces across the city, the officials said late Friday.

Brian Ebert, a Secret Service official, said the safety of the public or protectees was never jeopardized.

Right. An intruder managed to effectively blind law enforcement in the nation's capital for three straight days -- eight days before the inauguration of a new President, but hey -- no big deal. Fortunately the city was able to purge the malware and reboot the system without paying a ransom, though they still don't appear to have actually tracked down the intruder or his or her point of origin:

"Archana Vemulapalli, the city’s Chief Technology Officer, said the city paid no ransom and resolved the problem by taking the devices offline, removing all software and restarting the system at each site. An investigation into the source of the hack continues, said Vemulapalli, who said the intrusion was confined to the police CCTV cameras that monitor public areas and did not extend deeper into D.C. computer networks."

These intrusions are usually courtesy of an employee downloading something stupid, but the paper-mache grade security and default administrative credentials common on DVRs and other network-connected hardware also plays a starring role. The end result is an absolute laundry list of similar stories popping up all around the globe, from the Austrian hotel whose customers were locked inside their rooms thanks to a ransomware intruder, to the Texas police station that lost years of video evidence courtesy of poor security standards and a lack of redundancy.

And it's worth remembering that these are only the intrusions in which the intruder actually wants to make their presence known.

Overall, poorly secured internet-connected devices have not only contributed to a spike in ransomware attacks, but poorly-secured hardware is increasingly being infected and used as part of DDoS botnets, resulting in some of the largest and most devastating attacks we've seen to date. The IT security 2017 prediction du jour is a crippling attack that brings the internet to its knees sometime this year, with a loss of human life on some scale also seen as an inevitability. As several security analysts like Bruce Schneier have noted, our casual treatment of device security has created a security and privacy dumpster fire, and the spike in these DDoS and ransomware attacks is simply the check coming due.

In the wake of President Trump's travel ban, the San Francisco Police Department has offered up an unprecedented response: it's breaking up with the FBI.

On Wednesday, San Francisco officers took a bold stance against Trump’s new immigration laws. In response to Trump’s Muslim ban, they are cutting ties between the police department and an FBI task force.

The San Francisco Police Department (SFPD) has worked with the FBI on a Joint Terrorism Task Force (JTTF) since 2007, with the purpose of investigating terrorism threats, collecting intel, and making arrests.

Generally speaking, federal partnerships are forever… especially in Forever Wars. Local law enforcement agencies have been working side-by-side with federal agencies since the Drug War began. The same goes for the War on Terror. Wars keep government agencies in good health, awash in perpetual funding and repurposed military gear. Local governments are seldom interested in ending these lucrative arrangements, whether or not the underlying activity is productive.

But San Francisco already sees its supply of federal funding drying up. President Trump has made it clear he'll cut off this flow to cities that care more about immigrants than he does. So, there's some gamemanship in this move -- one that sends a message to Trump while expressing some resignation to the eventual fiscal punishment to come. The city of Austin, Texas is doing the same thing, but fighting the battle on two fronts, as its decision to call itself a "sanctuary city" has also earned it the displeasure of the state's governor.

But the SFPD's rejection of the FBI's "assistance" in the War on Terror suggests a couple of things -- neither of them complimentary -- about the federal agency's usefulness in this "war."

The first is explained in the Think Progress article.

[T]he SFPD will no longer work with the JTTF on the grounds that the federal agency will likely increase efforts to surveil Muslims, following Trump’s recent executive order to prevent Muslims from entering the county.

The other part is implied. By telling the feds to beat it, the SFPD is suggesting the FBI isn't doing much to acutally make San Francisco safer. The Joint Terrorism Task Force seems to be more about expanding surveillance and obtaining perpetual funding than preventing terrorist attacks or uncovering their conspiracies.

This much can be ascertained by the FBI's counter-terrorism efforts to date. For the most part, the FBI's terrorism busts have relied heavily on FBI informants being the brains, muscle, and wallet behind supposed future acts of terrorism. Undercover agents have pushed some of the weakest humans in the nation towards acts of violence -- acts which would likely never have materialized on their own. The FBI has poked and prodded easily-influenced people -- some elderly, some with mental problems -- into professing their support for [Current Top Terrorist Organization], helped them plan trips to [Top Terrorist-Associated Foreign Country], and purchased everything from duct tape to latex gloves to weapons for would-be terrorists that seemingly would have difficulty opening a savings account, much less coordinating an act of terrorism.

The SFPD feels it will be fine without the FBI's dubious assistance, which appears to be mostly limited to trampling civil liberties and ever-expanding surveillance with minimal oversight. The city can apparently handle the terrorism threat without federal intervention -- suggesting it's not much of a threat… and the FBI isn't much of a counter-terrorism agency.

What the city's rejection says about President Trump's orders and directives is pretty damning. What it says about the FBI and its counter-terrorism efforts is even worse.

Surprising nobody, new FCC boss Ajit Pai used a flurry of late-Friday announcements to roll back a number of consumer-friendly FCC initiatives the former Verizon lawyer (and the large ISPs that already love him) didn't like. Among them was the Wheeler-led FCC's attempt to crack down on zero rating, the practice of an ISP exempting its own content from its own arbitrary usage caps, while still penalizing competitors. The former FCC had just belatedly ruled that both AT&T and Verizon's zero rating efforts were anti-consumer, anti-competitive, and dramatically damaged the open streaming video market.

That was then, and this is now.

This new, Pai-led FCC wasted no time sending AT&T, Verizon and Comcast letters (pdf) proclaiming that all FCC inquiries into the anti-competitive impact of zero rating have been dropped. In a brief statement (pdf) issued to the media, Pai went so far as to imply he was doing this not because it's what giant ISPs wanted -- but because of a selfless dedication to the poor:

"Today, the Wireless Telecommunications Bureau is closing its investigation into wireless carriers' free-data offerings. These free-data plans have proven to be popular among consumers, particularly low-income Americans, and have enhanced competition in the wireless marketplace. Going forward, the Federal Communications Commission will not focus on denying Americans free data. Instead, we will concentrate on expanding broadband deployment and encouraging innovative service offerings."

You'll find that taking an anti-consumer position on something, then insisting it was only done to aid the downtrodden, will be a common refrain from this new Pai-led FCC. In reality, zero rating data doesn't create "free data plans," it simply shifts the cost burden onto streaming video providers -- or more accurately, the customers of streaming video providers. Those customers suddenly face having to pay more money for competing services, which naturally funnels them to the streaming services of AT&T (DirecTV Now), Verizon (Go90), or Comcast (Stream TV).

ISPs like AT&T and Verizon had tried to argue that disadvantaging competitors in this fashion wasn't a big deal, because those companies could pay AT&T and Verizon a steep and unnecessary surcharge to cap-exempt their services too, putting themselves back on equal footing with ISPs. Given that many smaller companies couldn't afford such tolls, the former FCC's report (pdf) made it clear that this structure would be abused by giant, incumbent gatekeepers:

"Thus, it would appear that AT&T's practices inflict significant unreasonable disadvantages on edge providers and unreasonably interfere with their ability to compete against AT&T's affiliate, DIRECTV, The structure of Verizon's FreeBee Data 360 program raises similar concerns. We are aware of no safeguards that would prevent Verizon from offering substantially more costly or restrictive terms to enable unaffiliated edge providers to offer services comparable to Verizon's affiliated content on a zero-rated basis.

Again, for those confused, zero rating is simply incumbent duopolists using a lack of competition in broadband to impose arbitrary and unnecessary usage caps, then (ab)using those caps to dramatically tilt the playing field in their favor. Full stop. Zero rating has absolutely nothing to do with helping "low income Americans," innovation or "expanding broadband deployment," and Pai's claims to the contrary are transparent and insulting.

There's more than a little cognitive dissonance required in insisting you're a stalwart defender of "free markets," then immediately turning a blind eye to the demolition of a level streaming video playing field by giant, lumbering monopolists. And, of course, this is just the opening salvo in the latest battle against net neutrality; while Pai gets to work refusing to enforce the agency's existing FCC rules, the GOP is getting to work on a Communications Act rewrite that will not only kill the net neutrality rules, but defang and defund the FCC as a consumer watchdog altogether.

If you actually give a flying damn about net neutrality, broadband competition and a healthy, open internet -- 2017 is going to desperately need your help.

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Just south of the Second Circuit Court of Appeal's district, a Pennsylvania (3rd Circuit) federal judge has come to (nearly) the opposite conclusion on law enforcement's access to emails stored overseas. This case deals with two FBI SCA (Stored Communications Act) warrants seeking emails that Google says aren't stored in the United States. Google, however, also says the sought emails could be at any of its data storage sites -- which would include those in the US. It all depends on when it's asked to retrieve the communications.

And there's where this decision parts ways with the Second Circuit, which found that emails stored in an Irish data center weren't subject to US-issued warrants. The court explains [PDF] Google's process for handling user data, which is built for efficiency, rather than what's central to the FBI's demands: efficiency of retrieval in response to law enforcement requests.

Google stores user data in various locations, some of which are in the United States and some of which are in countries outside the United States. Some user files may be broken into component parts, and different parts of a single file may be stored in different locations (and, accordingly, different countries) at the same time. Google operates a state-of-the-art intelligent network that, with respect to some types of data, including some of the data at issue in this case, automatically moves data from one location on Google's network to another as frequently as needed to optimize for performance, reliability, and other efficiencies.

As a result, the country or countries in which specific user data, or components of that data, is located may change. It is possible that the network will change the location of data between the time when the legal process is sought and when it is served. As such, Google contends that it does not currently have the capability, for all of its services, to determine the location of the data and produce that data to a human user at any particular point in time.

Because of the way Google handles data, it theoretically could refuse every US law enforcement request for communications. (It could do the same to foreign requests as well.) This makes Google's case distinguishable from Microsoft's legal battle. Microsoft knew exactly where the stored communications were located. Google says the communications might be anywhere -- in one place upon receipt of a warrant and in another when retrieval efforts begin. As the court sees it, the Second Circuit's ruling would basically make Google completely immune to law enforcement requests.

[I]f the court were to adopt Google’s interpretation of the Microsoft decision and apply such a rationale to the case at bar, it would be impossible for the Government to obtain the sought-after user data through existing MLAT channels.

The "fix," according the Pennsylvania court, is to have Google round up the sought communications in the US, putting them within reach of the FBI's warrants.

In contrast, under this court’s interpretation, Google will gather the requested undisclosed data on its computers in California, copy the data in California, and send the data to law enforcement agents in the United States, who will then conduct their searches in the United States.

Of course, this means compelling Google to do something with its data that it doesn't normally do, which would make it a seizure. And since the data sought is constantly in transit, the court is giving the government the power to step in and alter Google's data-handling. This would obviously be a seizure of data potentially stored (at least temporarily) in foreign countries. To get around the Fourth Amendment concerns this raises -- not to mention the expansion of the US government's power to compel the production of data from foreign servers -- the court decides no seizure actually takes place until the government takes control of the data Google has been ordered to compile.

In contrast to the decision in Microsoft, this court holds that the disclosure by Google of the electronic data relevant to the warrants at issue here constitutes neither a "seizure" nor a "search" of the targets' data in a foreign country. This court agrees with the Second Circuit's reliance upon Fourth Amendment principles, but respectfully disagrees with the Second Circuit's analysis regarding the location of the seizure and the invasion of privacy.

[...]

Electronically transferring data from a server in a foreign country to Google's data center in California does not amount to a "seizure" because there is no meaningful interference with the account holder's possessory interest in the user data. Indeed, according to the Stipulation entered into by Google and the Government, Google regularly transfers user data from one data center to another without the customer's knowledge. Such transfers do not interfere with the customer's access or possessory interest in the user data. Even if the transfer interferes with the account owner's control over his information, this interference is de minimis and temporary.

This is a really weird -- and wrong -- interpretation of the word "seizure." While it's true the FBI won't actually have taken possession of the emails until after Google has gathered them in a California datacenter to make them more Fourth Amendment-compliant (or whatever), the fact that Google has to interrupt its normal flow of data at the government's request would appear to make that initial interruption a "seizure" -- de minimis or not.

In essence, the court is saying the Fourth Amendment doesn't apply to data in transit. The government can compel the collection of overseas data and have the Fourth Amendment applied to it after it's already been gathered and stored locally. The decision makes a mess of the Fourth Amendment cart-horse configuration, but figures this is more acceptable than informing the FBI that its warrants might be useless.

The better conclusion to reach would be the one the Second Circuit reached: if the concern is that the 30-year-old SCA limits law enforcement's ability to demand data from overseas data centers run by US companies, the solution lies with the entity that created it (Congress), rather than the courts. This decision will be appealed and it's safe to assume the Third Circuit Court of Appeals will arrive at the same conclusion.

Even if Congress doesn't "fix" the SCA to make US companies with foreign data centers more responsive to law enforcement demands, cases going forward may start applying the Rule 41 changes that went into effect at the beginning of this year, which greatly expand the jurisdictional reach of US court-issued warrants. As for Google, its system isn't built with law enforcement's needs in mind, nor should it be. It does what works best for it, which is what we expect from private companies. This ruling gives law enforcement a workaround for dealing with the SCA's limits, so some forum shopping should be expected until this decision is (hopefully) overturned.

As we've been noting, broadband providers have wasted no time pressuring Congress to kill the FCC's new broadband privacy rules. These rules, passed last year, simply require that ISPs are transparent about what data they're collecting and who they're selling it to, while requiring they provide working opt-out tools. But the rules went further in requiring that broadband customers opt in to more sensitive data collection, including financial data. Given an informed, empowered consumer means less advertising revenue, ISPs quickly went to work throwing a monumental hissy fit.

This week, a coalition of broadband providers including Comcast, AT&T, T-Mobile and Verizon issued a breathless letter professing their absolute dedication to consumer privacy, apparently hoping that consumers haven't noticed they're simultaneously trying to kill the first meaningful broadband-specific privacy protections users have enjoyed in the history of the technology. As you might expect, the least-liked industry in America spends a notable part of the missive patting itself on the back for its selfless dedication to user privacy:

"ISPs understand the trust our customers place in us, and we are committed to protecting our customers’ privacy and safeguarding their information. For 20 years, we have implemented policies and practices that are consistent with the FTC’s widely respected and effective privacy framework and other federal and state privacy laws.

...We understand the importance of maintaining our customers’ trust. That is why we will continue to provide consumer privacy protections, while at the same time meeting consumers’ expectations for innovative new product solutions to enhance their online experiences.

Yeah, like that time Verizon was caught modifying user data packets to covertly track customers all around the internet without A. telling anybody or B. providing working opt out tools. Or that time AT&T began charging its broadband customers a steep premium just to protect their own privacy (something Comcast has shown repeated interest in as well). Or that time Cable One made it clear it wants to use user financial data to deliver worse customer service to low-income customers with bad credit. You can just feel the broadband industry's dedication to protecting your private data pulsing in the very wind itself!

In short the industry's trying to argue that the weaker, inconsistent privacy protections of the FTC are enough to protect consumers from wrongdoing. But as you saw in the last paragraph, the FTC (already overloaded and in constant risk of having its authority eroded) rarely has the time or interest in actually enforcing these rules anyway. The FCC's new rules were created specifically in response to these behaviors, and because the barely-competitive broadband industry creates some unique consumer protection challenges other industries and companies (like Google or Facebook, where users are free to use other services) don't face.

This idea that Congress will be somehow "streamlining" the FCC and eliminating duplicate authority will be the narrative du jour for most of this year. But in an outgoing interview with former FCC boss Tom Wheeler this week, the former dingo makes a point that's important for consumers and telecom journalists alike to understand:

"In the Trump administration, people are talking about stripping regulatory power from the FCC, and essentially taking the agency apart (including moving jurisdiction over internet access to the Federal Trade Commission [FTC]). “Modernizing” the FCC is the lingo being used. What’s your thought about that?

It’s a fraud. The FTC doesn’t have rule-making authority. They’ve got enforcement authority and their enforcement authority is whether or not something is unfair or deceptive. And the FTC has to worry about everything from computer chips to bleach labeling. Of course, carriers want [telecom issues] to get lost in that morass. This was the strategy all along.

So it doesn’t surprise me that the Trump transition team — who were with the American Enterprise Institute and basically longtime supporters of this concept — comes in and says, “Oh, we oughta do away with this.” It makes no sense to get rid of an expert agency and to throw these issues to an agency with no rule-making power that has to compete with everything else that’s going on in the economy, and can only deal with unfair or deceptive practices.

To try and ease concerns among those that, well, have actually paid attention to the industry's bad behavior on this front, giant ISPs like Verizon and Comcast instead proposed a voluntary group of self-regulatory principles governing transparency, data security, notifications in the wake of hack attacks, and "consumer choice." The industry's promise to respect user privacy choices are framed as such:

"ISPs will continue to give broadband customers easy-to-understand privacy choices based on the sensitivity of their personal data and how it will be used or disclosed, consistent with the FTC’s privacy framework. In particular, ISPs will continue to: (i) follow the FTC’s guidance regarding opt-in consent for the use and sharing of sensitive information as defined by the FTC; (ii) offer an opt-out choice to use non-sensitive customer information for personalized third-party marketing; and (iii) rely on implied consent to use customer information in activities like service fulfillment and support, fraud prevention, market research, product development, network management and security, compliance with law, and first-party marketing."

In short, we're going to just keep doing what we're already doing, while hiding behind overlong privacy policies, "implied consent," and loopholes that broadly declare most data "non-sensitive" -- all while obfuscating the fact the FTC privacy enforcement hasn't worked. If FTC enforcement alone for broadband privacy actually worked, Verizon wouldn't have been allowed to covertly track consumers around the internet for two years before security researchers actually noticed it. If FTC oversight actually worked on this subject, AT&T wouldn't have been allowed to charge users up to nearly $800 more per month in some instances just to protect their own data.

And having a weak (and likely soon to be weaker) cop on the beat is particularly important to companies like Verizon moving forward, given it has been on a tear gobbling up failed internet brands like AOL and Yahoo as part of its master plan to shift its focus from broadband toward slinging video ads at Millennials (apparently not very well). Verizon and friends have tried to argue that the FCC's privacy rules created "asymmetrical regulation," but they consistently ignore that the lack of broadband competition creates risks you don't see in the markets inhabited by the companies Verizon's envious of (Facebook, Google).

Here's the thing. The broadband industry had it pretty good for most of the last decade in terms of doing whatever it wanted with consumer data. Regulators, regardless of party, generally looked the other way as these companies hoovered up every shred of location and browsing data -- using everything from DNS tracking to deep packet inspection -- then relied on FTC regulatory loopholes to sell this data to pretty much everybody. Only once the broadband industry began pushing its god-damned luck with incredibly stupid ideas (with ideas like charging users for their own privacy) did the FCC even feel the need to get involved.

So in short, if the broadband industry's looking for someone to blame for the FCC's relatively modest privacy rules, it should spend some time looking in the mirror. Granted that may all be a moot point now that we've decided to put a former Verizon lawyer with a disdain for facts in charge of regulating the broadband sector. Back in 2008 Verizon claimed that consumer privacy protections weren't necessary because "public shame" would keep the company honest. There's every indication we're about to truly put that theory to the test.

I've been quite clear how I feel about Donald Trump's awful executive order that places a blanket ban on people entering the US (even if they had valid visas) from 7 countries, including a permanent block on Syrian refugees. Tons of people have been protesting this decision, and multiple courts have ruled against it. There has been some discussion over whether or not the tech industry was really going to stand up against this move, and some of the early statements about the executive order were a bit weak. However, late Sunday night, basically the entire technology industry (plus some companies from other industries as well) signed onto an amicus brief calling the order illegal and unconstitutional (technically, it's a motion asking for permission to file the amicus brief, with that brief attached).

The brief was filed in the Ninth Circuit appeals court, which is one of the first appeals courts considering the executive order, after a federal judge in Seattle issued a nationwide temporary restraining order on enforcing the exec order. On Sunday, the appeals court refused to reverse the lower court, keeping the TRO in place. However, it also gave both parties (the lawsuit itself was filed by the state of Washington) a very quick turnaround time to file written arguments to be considered.

Given that incredibly short time frame, the fact that 97 companies -- including some of the world's largest -- but also some tiny ones, like the Copia Institute (the think tank arm of Techdirt), were able to come together and not only get a detailed amicus brief together, but also get sign on from all of those companies (on Super Bowl Sunday, no less), is impressive. Having been through the process in which amicus briefs with multiple signers has been done before, normally there's lots of hemming and hawing from different companies and nitpicking over certain choices. It takes a lot of effort. Update: Another 30 companies have signed on as well.

But this issue was so important and so core and fundamental to our basic values, that basically the entire industry came together and signed onto this. You name the company, and it's probably signed on. There are the big guys: Google, Facebook, Microsoft and Apple (despite a false Washington Post article that claimed none of them had signed on). There are lots of other huge names as well, including Twitter, Snap, Uber, Airbnb, Lyft, Dropbox, Cloudflare, Box, eBay, GitHub, Kickstarter, Indiegogo, Medium, Mozilla, Patreon, Paypal, Pinterest, Reddit, Salesforce, Spotfy, Stripe, Wikimedia, Yelp, Y Combinator and many, many more. Update: Among the notable companies in the "late" sign on, were SpaceX, Tesla, Slack, Pandora, Adobe, HP, Evernote, Udacity and more...

I highly recommend reading the full amicus brief -- which makes an economic argument, a moral argument and a legal argument all wrapped up in one.

Immigrants make many of the Nation’s greatest discoveries, and create some of the country’s most innovative and iconic companies. Immigrants are among our leading entrepreneurs, politicians, artists, and philanthropists. The experience and energy of people who come to our country to seek a better life for themselves and their children—to pursue the “American Dream”—are woven throughout the social, political, and economic fabric of the Nation.

For decades, stable U.S. immigration policy has embodied the principles that we are a people descended from immigrants, that we welcome new immigrants, and that we provide a home for refugees seeking protection. At the same time, America has long recognized the importance of protecting ourselves against those who would do us harm. But it has done so while maintaining our fundamental commitment to welcoming immigrants—through increased background checks and other controls on people seeking to enter our country.

[....]

The Order effects a sudden shift in the rules governing entry into the United States, and is inflicting substantial harm on U.S. companies. It hinders the ability of American companies to attract great talent; increases costs imposed on business; makes it more difficult for American firms to compete in the international marketplace; and gives global enterprises a new, significant incentive to build operations— and hire new employees—outside the United States.

The Order violates the immigration laws and the Constitution. In 1965, Congress prohibited discrimination on the basis of national origin precisely so that the Nation could not shut its doors to immigrants based on where they come from. Moreover, any discretion under the immigration laws must be exercised reasonably, and subject to meaningful constraints.

There's much more in the full brief, and hopefully the court allows it and recognizes how momentous this is. I've never seen anything that so many tech companies have gotten behind (including things like SOPA), and this happened so fast that it is literally unprecedented. A whole bunch of people put in a tremendous effort to actually get this done (including more than a few having to miss the Super Bowl to get this done...). Andy Pincus from Mayer Brown deserves a specific shoutout for being the main lawyer putting the brief together.

We shall see what happens from here, but having basically the entire tech industry rise up in a single voice to say that this order is not right is nice to see. In this day and age, it's easy not to speak out and to just sit on the sidelines. But this is important, and when it mattered all of these companies spoke out.

Normally, on the rare occasions that Mike's or my own comments win the top spots, I skip over them unless they are really important — since this post is all about highlighting reader comments. This week, however, our participation in the comments on our response to Trump's immigration ban dominated the leaderboards to such a degree (with one double-winner) that skipping them would mean going pretty far down the list, so this particular comment post will have to be more boastful than usual. And indeed, all of our top-voted comments this week come in response to that post.

That said, a reader still beat Mike and me out for first place on the insightful side. Roger Strong provided the very first comment on the immigration post, and racked up the points with a simple and appropriate quote:

"The way a government treats refugees is very instructive because it shows you how they would treat the rest of us if they thought they could get away with it."
- Tony Benn, British Minister of Parliament for 47 years

In second place, we've got the first of Mike's several responses to our detractors on the post, in this case one who asserted that "no one except children are swayed by emotional arguments and cherry picking individual sufferers to form a platform which is ultimately harmful to society at large". Mike's response became a double winner, taking first place for Funny as well as second place for Insightful:

Really? Because that seemed to be the basis of the entire platform of the President of the United States.

For editor's choice on the insightful side, we'll start out with one more nod to Roger Strong for his activity on that post, in this case handily rebutting the argument that immigrants are a drain on the country:

You're making that up.

A more interesting look at the issue:

Wall Street Journal: Immigrants Founded 51% of U.S. Billion-Dollar Startups

...including Google, SpaceX, Tesla, Uber, Cloudfare and more.

And it doesn't even count second generation immigrants. For example Apple, founded by the son of a Syrian refugee and the son of Polish immigrants.

Which isn't at all surprising. When I was in high school it was the immigrants - from Asia, Russia, the Philippines, etc. - who did their homework and got the highest marks. They got the work ethic from their parents. Later I've worked for immigrants who set up businesses here.

We all know people with grand plans to improve their lives. They're going to move to the west coast. Or to Canada if the Republicans or Democrats win. They're going to save up, quit their jobs and go back to school. They're going to run for office and fix things. But most never do. They're stuck in the inertia of their own lives, unable to drop or stop making new commitments even in the long term. Or unable to save, or to put in the extra effort. Or just too nervous about taking a leap into a new life.

Immigration acts as a filter. You get only the people who DO the things they said. Who got over their fears. Who put in the extra effort and made the big leap.

These are the kind of people you want as citizens. The kind who ALSO tend to start businesses and create jobs. It's one reason why for immigration is a good deal for the countries they head for.

Next, we take a break from that post to look at one of the few clues we've gotten about the Trump administration's stance on copyright — a worrying editorial by one of his advisors who held up China's ability to disappear book publishers as a shining example of how IP enforcement is possible. Machin Shin was understandably horrified:

I must say, sure makes me feel all warm and fuzzy to know people in our government are looking up to China and their ability to make people vanish.....

What the hell has happened to this country? We are supposed to be a shining example of freedom, not some twisted country drooling over the wonderful power of an authoritarian country.

It really sickens me to see what this country has become. Instead of the land of the free and home of the brave we have a bunch of cowering morons trashing all our freedoms. I would much rather live free and risk being killed from a terrorist attack than live under an oppressive government that is promising me a false safety.

Over on the funny side, we've already had our first place double-winner from Mike above, so we move on to the second place winner... me! There was some debate over Trump's precise attitude towards Mexicans based on rather generous interpretation of the precise words in his infamous "criminals and racists" speech. Personally, I found his final caveat to be less than convincing:

"Some, I assume, are good people" is right up there with "but I have [minority group] friends!" on the list of Shit Racists Say.

For editor's choice on the funny side, we start out on our post about John Carmack's comments on the code expert who attempted to demonstrate "non-literal copying" in the ZeniMax/Oculus trial. Hij figured the concept could be put to good use:

On the up side this just gave every student in a programming class a way out of completing their assignment. Instead of saying, "the dog ate my code," now students can say, "I wrote the code, but I cannot distribute it since it is under copyright."

Finally, we head to the story of the Mac repair company whose lawyer sent out baseless threatening letters, offering up little more than a "just following orders" excuse when pressed by Paul Alan Levy. Roger Strong (he had a lot of great comments this week) was curious about the marketing aspect:

And what does he call this service?

iThug?

Fraud On Demand?

Chris Cammack's Barratry Emporium?

That's all for this week, folks!

Five Years Ago

This week in 2012, we watched as the reaction to ACTA continued to heat up. Though the opposition was in some danger of straying off course, there were some big developments: the Slovenian Ambassador apologized for signing the deal, the Polish Prime Minister suspended all efforts to ratify it, Bulgarian MPs followed in the footsteps of Polish MPs the week before and protested with Guy Fawkes masks, and widespread protests began to break out across Europe.

Meanwhile, the TPP was also on the docket for the week, with a stark example of crony capitalism presented by the USTR getting civil society groups kicked out of the Hollywood hotel where it was hobnobbing with entertainment industry elites. We pointed out that SOPA/PIPA should be a pretty good lesson on why these negotiations need to be way, way more transparent.

Also, this was the week we released the first Sky Is Rising report.

Ten Years Ago

This week in 2007, the world was still reacting to the newly Google-owned YouTube. The plans for revenue sharing with video creators were brewing, and while NBC was embracing the promotional value of YouTube clips, Viacom made its big move of telling Google to yank 100,000 videos off the service, setting the stage for the big legal feud to follow.

Also this week in 2007: Sony BNG reached a deal with the FTC for violating federal law with its horrible rootkit DRM, the RIAA had a SWAT team raid an Atlanta mix-tape producer on questionable legal grounds, Google was offering half-apologies for aiding Chinese censorship, and Adult Swim's now-infamous marketing stunt shut down the city of Boston.

Fifteen Years Ago

Five years earlier in 2002, Google made a much more popular decision when it announced it would not use pop-up ads. Of course, that seems obvious now, as did other things that were fresh at the time, like the convergence of wireless devices and the possibility of having a laptop as your only computer. In the world of secondary effects from the dot-com bubble bursting, we saw Cisco grappling with a huge gray market for used IT products and folks to dropped out to work in tech going back to school to finish their degrees.

Also, because nothing is truly new: folks were commenting on how news was getting less factual and more opinionated.

One-Hundred And Seventy Years Ago

Though not in fact headquartered in the city itself, Techdirt does a whole lot of its business in and around San Francisco — so this week we're marking a milestone in that city's history. It was on January 30th, 1847 that its name was changed from Yerba Buena to San Francisco by Lt. Washington Allon Bartlett.