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Ah, Australia. The country down under has always taken an upside down view on intermediary liability laws -- quite quick to blame an intermediary for 3rd party content. Two years ago we wrote about a problematic ruling in Australia based on the idea that media companies (not just social media companies) could be held liable for comments on Facebook about their stories. Any common sense thinking would immediately reveal how ridiculous this is: how can a media company be held liable for someone else's comments on someone else's website? Well, the judge noted, because they could hack Facebook and insert a filter to block comments on their stories with the 100 most common English words, as a form of pre-vetting every comment. I'm not kidding:

At the end of last year we wrote about an absolutely ridiculous SLAPP suit filed by John Paul Mac Isaac, the owner of a computer repair shop whose name became somewhat famous after the NY Post ran a story regarding what was apparently Hunter Biden's laptop that had been abandoned at the shop, which eventually found its way to Rudy Giuliani. When the initial story broke, both Twitter and Facebook moved to limit the spread of the article as there were some initial concerns about the veracity of the story. In Twitter's case, it said that the story violated its policy on "hacked materials" (a policy that we've argued was problematic for journalism).Isaac then argued that because of Twitter's moderation decision over "hacked materials" that it had defamed him in calling him a hacker. Consider this the precursor to a flurry of other lawsuits we've seen recently of mostly bad faith actors arguing that the reasons they were moderated are defamatory, which is not how any of this works. The initial lawsuit was tossed the same day it was filed on jurisdictional grounds, but a substantially similar lawsuit was filed a couple months later that solved the jurisdiction question by adding Madbits as a defendant. Madbits was an image search startup that Twitter acquired many years ago and shut down. Isaac argues in the complaint that Madbits still exists (even though Florida records show the company was shut down after the acquisition) as a way for Twitter to somehow skirt Florida employment laws. Either way, the addition of Madbits provided the kind of diversity jurisdiction necessary to keep the case alive, unlike the initial version that got tossed.Of course, it still didn't help -- and Florida's anti-SLAPP law now means that Isaac is on the hook for Twitter's legal fees. The ruling is pretty straightforward. This was not anything even remotely close to defamation. Regarding the "defamation per se" claims, the judge notes that Isaac's legal "theory is flawed for several reasons." Mainly because nothing Twitter did was in reference to Isaac himself.

Civil liberties in Australia are on the verge of extinction, thanks to the government's response to the COVID crisis. What has been heralded as a triumph of science and quick responses has drifted towards something far more totalitarian that imposes its will on the country's citizens, restricting them from living their lives, much less enjoying supposedly guaranteed liberties.Change has been a constant in response to this pandemic. But in countries considered to be part of the "free world," some balancing has been put in place to contain the spread of the virus while preventing citizens from being subjected to extreme measures usually only deployed by dictators.Australia has proven particularly resilient. But while people here in the US have entertained thoughts of kidnapping governors in response to minimal restrictions on social interactions and shopping, the residents of Australia have endured severe restrictions that seemingly only get more severe as time goes on.This is the exchange of liberty for safety -- an exchange that's been made involuntary by government officials. The arrival of the Delta variant has again complicated matters. And already severe restrictions are becoming draconian, thanks to the government of Australia believing there's no involuntary sacrifice residents won't make to keep COVID infections to a minimumConor Friedersdorf has compiled a compendium of Australia's latest COVID prevention efforts -- many of which haven't been seen in countries that aren't being run by Supreme Leaders or Presidents-for-life.

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We recently wrote about the need to start thinking differently about mis- and disinformation, as the discussions on it cover a bunch of different -- often unrelated -- concepts. And lumping them together creates problems (as it did with the term "fake news.") Last week (and over the weekend) a good example showed how this plays out in practice.Rolling Stone put up a story with the extremely provocative title Gunshot Victims Left Waiting as Horse Dewormer Overdoses Overwhelm Oklahoma Hospitals, Doctor Says. As people discovered later, that "Doctor Says" hidden at the end of the headline ended up being the load bearing pillar on which the rest of the story stood. And that pillar turned out to be made of fluff and nonsense, as the hospital is now running a massive popup on the front page of its website saying the story is bullshit:If you're unable to see the image, it says:

Consumer groups have grown increasingly annoyed at the Biden administration's failure to pick a third Democratic Commissioner and permanent FCC boss nearly eight months into his term. After the rushed Trump appointment of unqualified Trump BFF Nathan Simington to the agency (as part of that dumb and now deceased plan to have the FCC regulate social media), the agency now sits gridlocked at 2-2 commissioners under interim FCC head Jessica Rosenworcel.While the FCC can still putter along tackling its usual work on spectrum and device management, the gridlock means it can't do much of anything controversial, like reversing Trump-era attacks on basic telecom consumer protections, media consolidation rules, or the FCC's authority to hold telecom giants accountable for much of, well, anything. If you're a telecom giant like AT&T or Comcast, that's the gift that just keeps on giving.As the Washington Post notes, the Biden camp hasn't appointed anybody to lead the other top telecom regulatory agency, the NTIA. The inaction on both the NTIA and FCC appointments are setting records:

Maybe cops are too close to the action? Perhaps that's why it always seems it takes an outside entity to discover the problems (and problem officers) in police departments. The US Department of Justice frequently does this (less frequently from 2017-2020), although the long-term effects of its consent decrees and investigations seems to be pretty much negligible.So, why can't the police police themselves? The most obvious answer is there's no reason to. Few politicians are willing to go head-to-head with law enforcement agencies and even less willing to do so with their unions. Appearing to be tough on crime usually plays well enough it won't cost them votes. Looking the other way keeps legislators employed.Accountability activists are doing the work we're paying professional government employees to do, for the most part. But recent events have made some legislators realize sucking up to cops isn't as likely to result in lifetime employment as it used to. Changes will be made, if only because they're politically expedient.But back to the original question: why can't cop shops determine what's holding them back or which cops are a detriment to the force? We're still left to speculate, but there's no speculated answer that makes these agencies look good. And neither do the outside reports, which highlight tons of stuff that should have been obvious to those closest to the action.This report deals with a single agency in a Colorado city with a population of 369,000. And yet…

It's been over three years since Backpage.com was seized (the week before FOSTA was signed into law -- which is notable since every conversation about the need for FOSTA claimed it was because existing laws were useless to stop Backpage). However, in the intervening years we've seen that the loss of Backpage, rather than "protecting" women, seems to have put women at much greater risk. The recent Government Accountability Office (GAO) report highlighted how the loss of Backpage, combined with FOSTA, has made it difficult for law enforcement to track down actual sex traffickers.As more of the backstory behind the war on Backpage came out, the more ridiculous it looked. The company actually was incredibly helpful in working with law enforcement to track down and stop sex trafficking. The problem came when law enforcement wanted to stop more than actual sex trafficking, and started going after consensual sex work. Backpage pushed back, suggesting that was too far, and that's when the government turned Backpage into being a villain.With the trial beginning, the Daily Beast has as pretty comprehensive and pretty fair article detailing the whole thing, including raising serious questions about what exactly Backpage's founders actually did to deserve this criminal trial.

The notion that if libraries didn't exist already, the publishing industry wouldn't allow them to exist at all is both a grim joke and a depressing truth, as continually evidenced by the opposition of publishers to seemingly unobjectionable technologies like controlled digital lending, which aim to allow libraries to carry their mission forward into the digital age. This week, we're joined by Jennie Rose Halperin, executive director of the Library Futures Institute, to discuss the institute's new paper on the subject and the legality of and opposition to controlled digital lending, and what it tells us about the future of libraries.Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

The debate over content moderation at the infrastructure (rather than edge) layers of the internet stack is heating up again. For what it's worth, we'll be hosting our next Techdirt Tech Policy Greenhouse on this very subject later this month (if you're interested in contributing, please reach out). Last week Reuters claimed that Amazon was going to more aggressively police sites that rely on AWS (which created a bit of a furor earlier this year when the company booted Parler). Amazon has denied these claims, but it certainly raised some eyebrows.Then, on Friday, hosting company GoDaddy announced that it had given Texas Right To Live 24 hours notice that it was shutting down the snitch site that organization was running as part of Texas's ridiculously unconstitutional plan to allow anyone to sue anyone for vaguely "aiding and abetting" someone getting an abortion. As some commentators noted, such a site appeared to violate some of GoDaddy's policies -- and that's exactly what GoDaddy said in telling the site it had 24 hours to find a new host.GoDaddy claimed that the snitch site violated multiple policies, but the one that everyone has focused on is Section 5.2 of its terms:

In unsurprising news, the McDonald's McFlurry machine is down. In actual surprising news, the FTC is looking into it. (Paywall ahead, but here's another option.)

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A few weeks ago, Elizabeth Dwoskin, Will Oremus and Gerrit De Vynck from the Washington Post published one of the most fascinating -- and in some ways, most important -- discussions of social media and dealing with "disinformation" that I've seen in a while. It touches on two things I've written about recently -- how the way we talk about disinformation is not helpful and the difficulty in determining how to deal with bad faith actors.The WaPo article talks about a group on Facebook -- set up by concerned mothers -- that focuses on having thoughtful debate about vaccines -- an area that is fraught with misinformation, disinformation, utter nonsense, and propaganda. But where there may be legitimate causes for debate and concern. But the problem is that the space is so flooded with nonsense that it feels like any attempt to discuss stuff seriously quickly slides into the nonsense zone and everyone backs into their usual corners. But what this article notes is that it is possible to have a good faith debate on such topics, even with people who believe strongly in debunked nonsense. The real trick? Having strict rules and following them:

While streaming providers and hardware companies see significantly higher consumer satisfaction rates that traditional cable TV, their privacy practices still leave something to be desired. That's according to a new breakdown of streaming service privacy policies by Common Sense Media, which doled out terrible grades to pretty much everybody not named Apple:

More bad news for Israeli malware purveyor NSO Group. Despite its contradictory and simultaneous claims that it does not allow its customers to abuse its products and that it has no way of monitoring use of its products, more evidence continues to surface that shows the company's customers are deploying NSO's malware to target journalists, activists, prominent politicians, and religious leaders.Citizen Lab -- which has uncovered plenty of abusive use of NSO malware previously -- has released another report showing an abusive government abusing NSO spyware to spy on activists opposed to the country's current leadership. The investigation also confirms something NSO has repeatedly denied: that the list of numbers leaked to journalists and investigators is actually a list of potential targets of NSO's customers. That list included plenty of journalists, activists, politicians, and religious leaders.Perhaps the most worrying thing about this report is the use of an exploit that bypasses security measures activists would logically adopt: refusing to click on links sent by unknown senders.

This week, our first place winner on the insightful side is an anonymous entry in a long-running debate — I won't provide all the context (you can check it out for yourself) because frankly the source of the debate is getting a bit tiresome and well-placed smackdowns like this shouldn't even be necessary anymore, but apparently they are:

Five Years AgoThis week in 2016, a leaked copyright proposal in the EU was a complete mess with lots of terrible ideas — though that didn't stop Hollywood from finding something in it to freak out about — while a report from the UK government pretty much accused Facebook, Twitter, and Google of being unrepentant supporters of terrorism. On the flipside, we were surprised that the EU adopted net neutrality guidelines that didn't suck. James Comey was calling for an "adult conversation" about encryption but still refusing to listen to experts, while the DHS's new Election Cybersecurity Committee also lacked any cybersecurity experts, and we noted the Clinton Campaign's hypocrisy on encryption. And, of course, the monkey selfie debacle continued, this time with PETA losing its "next friend" status.Ten Years AgoThis week in 2011, we saw more of how ridiculous the lawsuits were from US Copyright Group and the Hurt Locker producers, the DOJ was battling Puerto 80 in court over its domain seizures (leading the latter to appeal on First Amendment grounds), and we took another look at the total lack of evidence for the supposed necessity of a fashion copyright. A DMCA takedown "prank" led to all of Justin Bieber's videos being removed from YouTube, and so all of a sudden record label executives were concerned about DMCA abuse (while Twitter was having its own problems with highly questionable DMCA claims leading to account suspensions). Meanwhile, an appeals court ruled that arresting a man for filming the cops violated the First and Fourth Amendments, but at the same time a man who filmed the cops in Illinois was facing 75 years in jail at the hands of an Assistant AG who insisted there is no right to record the police.Fifteen Years AgoThis week in 2006, cablecos and telcos seemed to be suddenly realizing that their service sucks, not that they would be fixing that anytime soon, while we took a closer look at the telco shills polluting the net neutrality debate. A weird internal copyright battle at the UK Cabinet Office led to one part of the office pulling another part's videos off YouTube, while the New York Times was blocking an article for UK readers for fear of liability under the country's problematic laws. In the midst of the world learning about its highly questionable conditions, Foxconn was threatening reporters with life-destroying consequences, but then tried to back down. Meanwhile, the MPAA was using its rating powers to obstruct a documentary about its rating powers, and the RIAA (which at the same time was still fighting for the right to scour people's hard drives) was following the MPAA's lead and creating an "educational campaign" to brainwash people about the evils of piracy.

It was only a week or so ago that we discussed the latest example of the type of fake DMCA notices that Google gets to delist certain URLs from search results. In this instance, a couple of factors made these DMCA notices even more problematic than usual. For starters, they claim to be coming from the U.S. Copyright Office, which very much does not send in DMCA notices like this. On top of that, the notices claim they are being sent by the U.S. Copyright Office on behalf of the Video Industry Association of America which, as I noted in my original post, doesn't seem to actually exist. Finally, and perhaps most importantly, these are notices for Section 1201 claims, which deal with anti-circumvention aspects of copyright law, that target mostly stream-ripping sites and sites that cover or guide legit uses of those sites. Notably, Google does not have an appeal process for 1201 notices, leaving anyone who got delisted basically screwed.Well, now the mystery somewhat deepens. The Section 1201 DMCA notices have continued to flood Google, but now they are being supposedly sent directly by the Video Industry Association of America, with whoever is sending these dropping the pretense that they're coming from the US Copyright Office. But that isn't actually clearing much up other than to highlight, again, that the organization doesn't actually exist and is coming from Russia.

How much does it take to establish reasonable suspicion needed to subject a person to an at least temporary removal of most of their rights? Not much, says the Fifth Circuit Appeals Court, which appears willing to keep poking the SCOTUS bear with its mind-boggling interpretations of Constitutional rights and the power of law enforcement to bypass them.This recent decision, highlighted by defense lawyer/"Constitutional cultist" Andrew Fleischman, says all cops need are a few seconds of observation and some vague assertions about criminal activity in the general area.Here's the setup, as presented by the Fifth Circuit [PDF]:

Sometimes speaking out works. A month ago, Apple announced a series of new offerings that it claimed would be useful in fighting back against CSAM (child sexual abuse material). This is a real problem, and it's commendable that Apple was exploring ways to fight it. However, the major concern was how Apple had decided to do this. Despite the fact that a ton of experts have been working on ways to deal with this extremely challenging problem, Apple (in Apple fashion) went it alone and just jumped right in the deep end, causing a lot more trouble than necessary -- both because their implementation had numerous serious risks that Apple didn't seem to account for, and (perhaps more importantly) because the plan could wipe away years of goodwill in conversations between technologists, security professionals, human rights advocates and more in trying to seek solutions that better balance the risks.Thankfully, with much of the security community, the human rights community, and others calling attention to Apple's dangerous approach, the company has now announced a plan to delay the implementation, gather more information, and actually talk to experts before deciding how to move forward. Apple put (in tiny print...) an update on the page where it announced these features.

One of the characteristics of maximalist copyright companies is their limitless sense of entitlement. No matter how much copyright is extended, be it in duration, or breadth of application, they want it extended even more. No matter how harsh the measures designed to tackle copyright infringement, they want them made yet harsher. And no matter how distantly connected to an alleged copyright infringement a company or organization or person may be, they want even those bystanders punished.A worrying example of this concerns Quad9, a free, recursive, anycast DNS platform (Cloudflare has technical details on what "recursive" means in this context). It is operated by the Quad9 Foundation, a Swiss public-benefit, not-for-profit organization, whose operational budget comes from sponsorships and donations. In other words, it's one of the good guys, trying to protect millions of users around the world from malware and phishing, and receiving nothing in return. But that's not how Sony Music GmbH sees it:

Well, this isn't cool. Colorado transportation officials fed bogus information to map apps to make an open road appear to be closed.Hoping to keep traffic from rerouting to a smaller road after a larger highway was closed due to rockslides, the Colorado Department of Transportation did this:

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We talk a lot about the various challenges of content moderation all the time here on Techdirt, but there's one aspect that really comes up all the time and is rarely addressed: how do you deal with bad faith actors? So much of the debate around content moderation tends to be based on the idea that there is merely a legitimate difference of opinion on what is and what is not appropriate -- or what is and what is not "misinformation." And there are important debates to be had about all that.However, one of the biggest challenges regarding content moderation is that things that might make sense when dealing with those acting in good faith make no sense at all when dealing with those acting in bad faith. An example of this is the question of requiring (or even just demanding) that any website give a clear explanation of what rule was violated and how. This feels perfectly sensible. And when your content is taken down for reasons you legitimately feel were mistaken, the inability to know why is genuinely frustrating (ask me how I know).But, turn that around and apply it to someone who is purposefully pushing the boundaries and gaming the system, whether trolling for lols or grifting gullible suckers, and suddenly you realize how such a request creates even more problems. Because the bad faith actor doesn't care. They don't actually want to learn what they did wrong to be better. They want to (1) cause problems for the site and (2) collect information so that next time, they can exploit that knowledge to engage in further bad acts without getting caught.I was thinking about this after reading a great Daily Beast article by Wajahat Ali, acknowledging a similar issue in politics. So many of the norms of politics (and political journalism) are based on the idea that -- even if you're disagreeing with people -- they're acting in good faith and there's simply a disagreement of assumptions or how you interpret those assumptions. But, as Ali has pointed out, all too frequently, that's not true any more in the political sphere, and treating bad faith jackasses as if they're acting in good faith cannot lead to any good outcome.

A new study published in the American Science Review found that that if you're an asshole troll online, there's a pretty good chance that you're the same way in the brick and mortar world. The researchers used representative surveys and behavioral studies from the U.S. and Denmark to try and figure out if it the novel and relatively new internet was somehow making normal human beings more hostile. But as the researchers point out on Twitter, they found no real evidence for that:

It has now been over six years since Valve finally put in a refund policy for video games purchased on its Steam platform. At the time of its announcement, I was very much in favor of this move by Valve, given how previously the prospect of buying games on the platform was laughably tilted in favor of publishers and developers. On top of that, a whole bunch of the outcry from publishers and developers over the policy seemed to mostly center around it existing at all, meaning such concerns were mostly just requests to go back to the one-sided policies that favored them. Some developers even saw large numbers of refunds as a good thing, arguing that those refunds were likely largely from people that never would have tried their games out if a potential refund weren't in place.But going way back to that first post over its announcement, one concern brought up by developers seemed legit. Given that the refund policy required the buyer to have bought the game within the past two calendar weeks and to have not played more than two hours of it, well, what about very short games that can be completed well within that timeframe?That exact scenario has now impacted one indie developer such that it is quitting the game development industry altogether.

Individuals in dictatorships need more freedom not less. Syrians have for years been unable to work remotely or pay for remote services, even educational ones. Do we want to do the same now to Afghans, who are already in fear of the Taliban? Examining in detail the experiences of Syrians, can maybe lead us to a better solution.Major online distance learning platforms based in the US, such as Coursera, that have emerged as crucial tools during the pandemic, are partially or fully blocked in Syria because of U.S. sanctions. While intended to weaken the Syrian government, the sanctions have also restricted access to an online learning universe that could offer critical opportunities to ordinary Syrians trapped in difficult circumstances.With a global audience of 87 million learners, Coursera offers free lecture courses from universities around the world, including many top-tier American schools such as University of Pennsylvania, Princeton, Yale, Brown, Columbia, Stanford, Johns Hopkins and Northwestern.But in the war-torn country, people are unable to take advantage of the online high quality courses.Coursera is not alone: Its competitor, Udacity, is also banned in Syria. Of the major online learning platforms, the only one operating in Syria is edX, the nonprofit platform founded by MIT. However edX only offers a few courses. This is particularly problematic for a country that has often relied on these courses to innovate and create new job opportunities.But why is Syria sanctioned?Syria has been the target of economic sanctions imposed by the US Office of Foreign Assets Control (“OFAC”) since 1979, when the Carter administration added Syria to the State Sponsors of Terrorism list. The program includes trade embargoes, import and export restrictions, investment bans, asset freezes, and travel bans.President Bush further expanded the U.S. Syria sanctions program in 2004 as part of the ongoing ‘War on Terror’ under the Syria Accountability and Lebanese Sovereignty Restoration Act of 2003 (SAA).In 2011, President Obama imposed new sanctions against Syria in response to the Assad regime’s targeting of civilians in pro-democracy uprisings. The 2011 sanctions targeted the Syrian oil sector, freezing the assets of Syrian individuals and entities, prohibiting petroleum imports and investments, and prohibiting the sale of services to Syria.What does this mean for Syrians?The restrictions seem more symbolic than effective. IP address bans are notoriously easy to work around — to access the blocked websites, Syrians often resort to VPNs that mask their location. The problem is that VPNs are often unreliable and may interfere with the interactive experience offered by the platforms.Even if Syrians manage to access free online learning classes via a VPN, they are unable to obtain certificates of completion, since those require a fee as and no online payment methods are available from within the country due to these same sanctions.The same scenario applies to language tests. Syrians are unable to take TOEFL and IELTS, the two main English language proficiency tests accepted across the world, as payments made from within Syria are not accepted.The easiest option is to take these tests in neighboring countries, such as Lebanon, but the costs of travelling are too high for the large majority of Syrians (80% live in poverty, according to UN data released in March 2021).An alternative to IELTS and TOEFL is the Duolingo English Test, which became available in late 2020 after Duolingo managed to receive a special exemption from OFAC. While the exam can be taken online while in Syria, the fee must be paid from outside Syria. As such, people have to ask friends and relatives living in other countries to make the payment for them, a significant obstacle due to the difficulty of conducting wire transfers in the country.Computer science students and software engineers are also unable to access some essential services offered by Microsoft's GitHub, the world's most-used tool for software development.On top of all that, at a moment when much of the rest of the world is relying on digital tools to survive a pandemic, Syrians are also unable to access other online services, such as Amazon Books and Zoom, that have been crucial for online learning elsewhere.We Need Better Legal FrameworksPeople under military rule are essentially "Stateless" and should be provided opportunities to integrate into the global economy rather than kept out. The rationale for comprehensive sanctions seems to be that any money flowing into a country with a military dictator will end up in the dictator's hands. However, this is not always the case - and allowing people a way to make a living and to educate themselves, independent of the ruling class, is likely to be in everyone's interests in the long run.Raise the Voices is an International human rights project that supports victims and their families.

In May, the Miami Beach city council passed an ordinance that basically made it illegal to come within 20 feet of cops.

A recent and surprisingly unpleasant professional encounter found me thinking again about an experience I had in the late 90s during my earlier career as a web developer before I went to law school. I'd gotten involved with a group that put on monthly meetings on topics of interest to the local community of Internet professionals. After the meetings a bunch of us would typically go out for dinner to chat and catch up. I did know some women from the organization, but I think most of the time the friends I went out with afterwards were men. It has never really bothered me to be in situations where I am outnumbered by men, so long as I'm treated with the respect of an equal. And I had no quarrel with my male friends on that front. But that evening drove home a reason why it was not good for women not to be better represented in technology in general.Out at dinner we began "talking shop" almost immediately, discussing, in those early days of the Web, the importance of e-commerce to businesses and what sort of web presences companies needed to have in order to be able to profit from the Internet. We started listing stories of successes and failures, but the conversation ground to a halt once I offered my example:

American armed forces entered Afghanistan nearly 20 years ago, bringing with them weapons, vehicles, and a vast amount of war tech. After 20 years, we're finally out of Afghanistan, but much of what the US military brought to the country has been left behind.Obviously, the best way to prevent this eventual outcome was no longer an option after October 7, 2001. Clean exits are impossible. The solution is to never enter. What was left behind to be used by the Afghanistan military (or simply because it was logistically impossible to remove) is now mostly in the hands of the Taliban.As was reported earlier, devices used for the collection of biometric data are now possessed by the Taliban. Originally tasked with collecting data to be used to recognize and track insurgents and terrorists, the devices' purpose expanded to include friendly locals who worked with the US military to help it identify and hunt down insurgents and terrorists.The devices themselves may be of limited value, at least in terms of containing data the Taliban can use to identify local allies of the now-departed US military. That's according to this new report from MIT Technology Review.

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It's always astounding to me how little most policymakers consider how many of the policies they push for contradict one another. On Wednesday, the Texas Senate easily approved its version of HB20, the blatantly unconstitutional bill that tries to prevent social media websites from moderating content that Texas Republicans want kept up -- explicitly saying that Facebook must leave up vaccine misinformation, terrorist content, and Holocaust denialism. While the bill does include some language to suggest that some content can be moderated, it puts a ton of hurdles up to block that process. Indeed, as the bill makes clear, it does not want Facebook to moderate anything.

If you've spent any real time digging into Trump GOP era tech policies, you've probably noticed they're a jumbled mess of contradictions and inconsistencies, cloaked in a lot of performative propaganda. The same party that thought net neutrality (the FCC holding telecom giants vaguely accountable) was a government hellscape, pivoted on a dime to try and force the FCC into regulating social media companies. The same GOP that whines incessantly about "big tech" via performative populism, routinely runs for the hills any time somebody actually tries to rein in corporate power or implement genuine antitrust reform.Of course in the mainstream press (in this context usually The New York Times, Axios, The Washington Post, Politico, and friends), the inconsistency of the GOP's policy platforms is never really explained. It's part of the "view from nowhere" disease that has infected mainstream U.S. political coverage, where everything is portrayed in a "he said, she said" frame of perfect symmetry, leaving your readers completely uncertain where the truth actually lies. It's driven by a fear of upsetting sources and advertisers, and results in a media that simply refuses to call a duck a duck (or bullshit bullshit) when urgently required.That bubbled up again this week as the GOP bristled at the fact the committee investigating the January 6 attack on the Capitol by a pro-Trump mob has been asking telecom and tech companies to retain relevant communications between lawmakers and organizers. Facebook, Google, Microsoft, Twitter, Signal, Verizon, AT&T, and T-Mobile have all received requests. As Mike has noted there are concerns that the requests are worryingly broad, including troves of internal communications at the companies' themselves.At the same time, many of the requests (especially those looking at the text message and call logs from telecom companies) are perfectly legitimate, and if investigators can find text messages showing coordination between the violent Capitol-assaulting mob, its organizers, and the GOP, that kind of seems arguably important in terms of a functioning democracy and avoiding even worse scenarios down the road. After all, guys like Jim Jordan are nervously babbling in interviews like this one for a reason:

Late last year, we discussed a predictably odd move by Nintendo to shut down a Smash Bros. tournament called The Big House over its use of a mod called "slippi." Slippi essentially unbreaks the 20 year old game when it comes to competitive online play. Otherwise, the whole thing basically doesn't work from a online play perspective. And, with all kinds of events going virtual, The Big House attempted to run its tournament virtually, meaning that participants would have to use a digitized version of the game they owned, along with the mod, in order to participate. After it nixed the tourney, Nintendo put out the following statement:

Summary: From August to October of 2020, as the COVID-19 pandemic had no end in sight and plenty of people were still stuck at home, on lockdown, unable to gather with others, the video game Among Us became incredibly popular as a kind of party game when there were no parties. The game had already been out for a while, but for unclear reasons it became the go-to game during the pandemic. It was so popular that the company behind it, InnerSloth, cancelled its plans for a sequel, promising instead to focus on fixing up the existing game and dealing with some of the bugs that were popping up from such widespread usage.Among the bugs that InnerSloth had to deal with was the ability to hack the game with various apps and tools that allowed users to possess more powers in the game than they should be able to have.This came to a head in late October of 2020, when the game was apparently overrun by spam promoting a YouTuber named “Eris Loris.” Some of the spam had political messaging, but all of it told people to subscribe to that user’s YouTube account. Sometimes it came with vaguely worded threats of hacking if you didn’t subscribe. Other times it just told people to subscribe.While this attack was variously described as both a “hack” and a “spammer,” it appears that it was a combination of both at work. The end result was spamming players in the game and making it impossible to keep playing, but it was also carried out via a hack that filled the game with bots designed to spread the message. The person who goes by the name Eris Loris told the website Kotaku that he did it because he thought it was funny:

Thanks to the Supreme Court, it's pretty much legal for US law enforcement officers to kill people in Mexico. I know, that doesn't seem right but that's the way it plays out. So long as only bullets cross the border, the extraterritorial, extrajudicial killings are incapable of being remedied by a civil rights lawsuit.Early last year, the Supreme Court upheld a Fifth Circuit decision refusing to extend Bivens to cover the killing of Mexican teen Sergio Adrian Hernandez Guereca by US Border Patrol agent Jesus Mesa, Jr. According to the agent, a group of teens were running back and forth across a culvert to touch the border fence. He also claimed they were "pelting" him "with rocks." (Cell phone footage of the killing contradicted Mesa's rock-throwing claim.) Apparently, this conflict could not be resolved without deadly force. Mesa shot across the border, killing the fifteen-year-old.After two passes at the civil rights suit at the appellate level, it moved forward to the Supreme Court, which ruled that Bivens does not cover cross-border shootings. Without a cause of action, there can be no lawsuit. Mesa escaped even a limited form of justice and the Supreme Court's recommendation was basically to avoid being shot on the wrong side of the border. The nation's top court further refused to insert itself in this sort of international matter, recommending only that both governments (US/Mexico) try to work something out that will possibly allow people to seek justice for extraterritorial, extrajudicial killings.This decision has now paid off for another perpetrator of an extrajudicial, extraterritorial killing. In 2011, US Border Patrol agent Dorian Diaz shot and killed Jose Alfredo Yanez, claiming Yanez tried to hit him with a nail-studded table leg through a hole in the border fence before mounting the fence to throw rocks at him. Rather than retreat beyond rock-throwing distance, Diaz shot Yanez, who landed literally across the border line.If he had landed wholly in the United States, his survivors might have had a case. But the US government definitely didn't want his survivors to sue successfully, so it hired a surveyor to map out Yanez's dead body to determine how much of it was laying in which country. The final call? Mostly in Mexico. (You can see that surveyor's photo here. [Content Warning: blood/death])And the Ninth Circuit's final call [PDF]? This killing isn't enough like the original Bivens case to be pursued as a Bivens case. Because killing people at the border isn't like a warrantless search of a house, the Border Patrol agent will be allowed to walk away from this lawsuit.

It's historically always been true that however bad a hack scandal is when initially announced, you can be pretty well assured that it's significantly worse than was actually reported. That's certainly been true of the recent T-Mobile hack, which exposed the personal details (including social security numbers) of more than 53 million T-Mobile customers (and counting). It's the fifth time the company has been involved in a hack or leak in just the last few years, forcing the company's new(ish) CEO Mike Sievert to issue yet another apology for the company's failures last Friday:

There was plenty of attention paid OnlyFans decision recently to ban "sexually explicit" content -- a policy the company suspended following an outcry. However, more and more people are noticing that the same kind of thing is happening across the internet due to FOSTA.The New Yorker has a very interesting article describing how eBay recently banned almost all adult content on its website, and one of the consequences is that important historical LGBTQ content is disappearing. Yet again, this appears to be one of the very much intended consequences of FOSTA. You may recall that one of the major backers of FOSTA were pretty explicit that they saw it as part of their plan to stop all pornography from existing.And, it's working:

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Is there anything law enforcement won't use geofence warrants for? The answer appears to be "no."A recent Google transparency report shows exponential growth in the geofence (a.k.a. "reverse") warrant market, one that Google has inadvertently cornered by collecting more GPS info than any of its competitors. These aren't traditional warrants. Traditional warrants use probable cause to justify searches of places, people, and objects (like vehicles)."Reverse" warrants are just that: a dragnet cast by cops to find a suspect in a pool of possibilities, most of whom are not criminals. Working backwards from a long list of GPS data points and cellphone information, investigators try to find the most likely suspect and then move forward again, this time using some actual probable cause. They're not always correct. And they seem largely unconcerned that demanding location data on hundreds, if not thousands, of innocent people perverts the process.A recent report by Russell Brandom for The Verge shows the trend towards bulk collection continues. And, as reported previously, it involves federal agents who want to convert state charges to federal charges (using imaginative readings of the phrase "interstate commerce" to do so) to generate as much pain as possible for people who participated in protests against police violence, whether lawfully or not.Protests in Kenosha, Wisconsin following the shooting of a black man by police quickly turned violent. Not only were businesses burned and destroyed, a 17-year-old interloper named Kyle Rittenhouse convinced his mom to drive him to Kenosha from his home in Antioch, Illinois. Once there, the armed Rittenhouse engaged in his vigilante fantasies, shooting three protesters, killing two of them.The ATF was more interested in the arson, though. And it thought the best way to generate investigative leads was to gather information on thousands of protesters, almost every one of which did not start any fires.

After Hurricane Katrina, in 2008 the FCC passed rules mandating that cellular towers be upgraded to include battery backups or generators capable of delivering at least 8 hours of backup power, basically the bare minimum for usefulness. But the US cellular industry, you know, the one whose rates are some of the highest in the developed world, cried like a petulant child about the requirement and sued to successfully scuttle the rules.Backed by the then Bush White House, cellular carriers insisted that the requirement would create "a huge economic and bureaucratic burden" for the industry. A better approach, it proclaimed, would be to let the industry self-regulate and adhere to entirely voluntary guidelines, leaving it with the "flexibility" to adapt to problems as the industry saw fit. The U.S. government did what the industry asked because, well, that's what U.S. telecom policy basically is now. And despite the fact this kind of industry ass kissing never works out particularly well, the country simply refuses to learn much of anything from the experience.U.S. telecom policy failure has been apparent everywhere, most notably in telecom competition, reliability, customer service, and pricing. But it's also abundantly obvious when it comes to disaster policy.There have now been repeated examples where the industry's failure to weather proof their infrastructure -- and provide reliable backup power at cell tower sites -- added insult to injury. Most notable among them was Hurricane Sandy in 2012, hurricanes Irma and Maria (which absolutely devastated Puerto Rico) in 2017, and the historic California wildfires of 2019. In every instance essential cellular service failed because many penny pinching companies weren't willing to spend the necessary money to harden their networks in the face of climate change, and regulators didn't genuinely hold them accountable.Fast forward to this week, and the same story played out once again. About 40% of AT&T's wireless network simply didn't work in the wake of Hurricane Ida (unsurprisingly due to lack of backup power at many cell sites), leaving disaster victims unable to contact loved ones. Telecom policy experts keep pointing out that this is preventable, and that letting spending-averse telecom giants dictate U.S. policy on this subject isn't wise:

You will recall that we were just discussing a cool little story about Bethesda going so far in embracing the modding communities surrounding its games that it ended up hiring one of the writers of an impressive Fallout 4 mod onto its team. Part of what made that story interesting was not how totally novel it was. After all, modders have found their way into developer roles in the past. Instead, it's that it was Bethesda that made it interesting, being a AAA title developer and the fact that the gaming industry certainly doesn't approach modding communities with unanimity.But it would be great for this to become a trend, as a demonstration of the boon that modding communities can be for developers, rather than some kind of a threat to their control. It's probably too early to call this a full on trend at this point, but it is worth highlighting that we have yet another story of a AAA developer hiring on members of a modding community, this time with CD Projekt Red.

There's an interesting discussion that happens in content moderation circles with regards to government requests for takedowns: are those requests about content that violates local laws or about the content violating website policies? Many people lump these two things together, but they're actually pretty different in practice. Obviously, if a government comes across content that violates the law, it seems reasonable for them to alert the platform to it and expect that the content will be removed (though, there may be some questions about jurisdiction and such). However, when it's just content that may violate site policy, there are some pretty big questions raised. This actually gets to the "jawboning" question we've been discussing a lot lately, and exploring where the line is between a politician persuading a website to take something down and compelling them to do so.There is one argument that suggests that a government pointing out content that might violate site policies is simply helping out. The website doesn't want content that violates its standards, and the government reporting it is just like any other user reporting it (though, backed up by whatever credibility the government may or may not have). But, the flip side of that is, if the content is perfectly legal, this often starts to feel like a loophole through which government actors can engage in wink-wink-nudge-nudge censorship -- just send a notification to the site that this particular content may not break the law, but hey, doesn't it violate your policies?A recent decision by the Oversight Board, and a corresponding statement from Facebook, suggests that Facebook is going to be clearer about when this situation happens. The case the Oversight Board reviewed was an interesting one. Here's how it summarized the situation:

There's an interesting discussion that happens in content moderation circles with regards to government requests for takedowns: are those requests about content that violates local laws or about the content violating website policies? Many people lump these two things together, but they're actually pretty different in practice. Obviously, if a government comes across content that violates the law, it seems reasonable for them to alert the platform to it and expect that the content will be removed (though, there may be some questions about jurisdiction and such). However, when it's just content that may violate site policy, there are some pretty big questions raised. This actually gets to the "jawboning" question we've been discussing a lot lately, and exploring where the line is between a politician persuading a website to take something down and compelling them to do so.There is one argument that suggests that a government pointing out content that might violate site policies is simply helping out. The website doesn't want content that violates its standards, and the government reporting it is just like any other user reporting it (though, backed up by whatever credibility the government may or may not have). But, the flip side of that is, if the content is perfectly legal, this often starts to feel like a loophole through which government actors can engage in wink-wink-nudge-nudge censorship -- just send a notification to the site that this particular content may not break the law, but hey, doesn't it violate your policies?A recent decision by the Oversight Board, and a corresponding statement from Facebook, suggests that Facebook is going to be clearer about when this situation happens. The case the Oversight Board reviewed was an interesting one. Here's how it summarized the situation:

Canada is barreling towards a federal election, and if recent legislative proposals are any indication, the outcome will have huge implications for the future of the internet in the country. Between the recent Bill C-10 and the proposed online harms legislation (among other things), it's clear that plenty of Canadian politicians want to make drastic and draconian changes to how the internet is regulated. This week, I join Mike on the podcast along with Matt Hatfield, the Campaigns Director of OpenMedia (something like Canada's version of the EFF), to discuss the Canadian election and what it means for a variety of important internet policy issues.Follow the Techdirt Podcast on Soundcloud, subscribe via Apple Podcasts, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Whatever you think of what happened on January 6th, people should be concerned about the House Select Committee that is investigating those events now demanding information from various social networks. As the committee announced in a press release, it was demanding records from a long list of social media companies.

Under president Donald Trump, ICE went from barely tolerable to fascist stormtroopery, doing anything in its power to kick people out of the country. Trump claimed he was just trying to make the nation safer by ridding us of the "worst of the worst." His vague directives lit a fire under the worst ICE employees, giving them free rein to forcibly eject as many people as possible, even if those people were not the "worst," nor even trending towards that direction.ICE struggled to find (figuratively [but also maybe literally?]) boatloads of hardened criminals to send packing, so it decided quantity was preferable to quality. To cite just one example of ICE's enthusiasm for ejecting even the best and brightest (along with everyone else), the agency set up and ran a fake college solely for the purpose of booting people trying to do nothing more than continue their education and satisfy the requirements of their student visas.A court case currently being reviewed by the Eleventh Circuit Appeals Court appears to show ICE engaging in retaliation against protected speech in order to remove (check reports) a man who has lived in this country illegally, but definitely gainfully, for nearly two decades. Joel Rose has this report for NPR:

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When the UK announced its rebranded "Online Safety" bill (originally, the "Online Harms" bill) we noted that the mechanism included was effectively identical to the original Great Firewall of China. That is, when China first began censoring its internet, rather than telling websites explicitly what needed to be taken down, it just gave vague policy guidance about what "harmful" information would be a problem if it was found online, and backed that up with a serious threat: if any service provider was found not to have taken down information the government deemed problematic, it would face serious consequences. There was, of course, no such threat for taking down information that should not have been taken down. The end result was clear: when in doubt, take it down.It remains preposterous to me that all across Western democracies, we've seen them taking the same basic approach -- insisting that platforms need to be much more aggressive in pulling down "bad" information (loosely defined), with significant liability attached to leaving it up (even if the content is legal), and little in the way of punishment for overblocking. And, over and over and over again studies have shown that when you set up a liability regime this way, you get massive overblocking. It seems that some countries see that as a feature, not a bug.And, of course, with that approach now being picked up in other countries, China has apparently decided to ramp up its own approach. Under the guise of stopping "harmful" information online, China has released a draft of new regulations to punish internet companies that don't remove harmful information:

For a while it's been clear that Apple has been hoping to use "we care about privacy" as a marketing advantage in an internet economy that consistently... doesn't. For example Apple has stood up to the FBI when it comes to backdooring encryption. And in 2020 Apple unveiled several new privacy features and policies it hoped would differentiate it from its other "big tech" contemporaries repeatedly under fire in the press and in Congress. Granted there's been ongoing hints this dedication isn't exactly consistent, but it's the thought that counts, I guess.But Apple employees say the company's outward-facing dedication to privacy isn't reflected in house. This week The Verge reported on how the company's decision to force Apple employees to link their personal Apple ID and work Apple accounts are creating significant privacy headaches for employees. Personal Apple ID accounts are obviously filled with all manner of sensitive personal and financial data that an employee might not want shared with an employer. And the requirement that employees fuse their personal and work lives in such a fashion is causing significant internal turmoil, the report claims: