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It's no secret that Amazon-owned Twitch has had a rough go of it for the past year or so. We've talked about most, if not all, of the issues the platform has created for itself: a DMCA apocalypse, a creative community angry about not being informed over copyright issues, unclear creator guidelines for content that result in punishment from Twitch while some creators happily test the fences on those guidelines, and further and ongoing communication breakdowns with creators. All of that, mind you, has taken place over the last 12 months. It's been bad. Really bad!But great news: now it's even worse! Someone managed to get into the Twitch platform and leak it. As in pretty much all of it. And even some information on a Steam-rival Amazon is planning to release. Seriously.

Summary: In its 15 years as a micro-blogging service, Twitter has given users more characters per tweet, reaction GIFs, multiple UI options, and the occasional random resorting of their timelines.The most recent offering was to give users the option to create posts designed to be swept away by the digital sands of time. Early in 2020, Twitter announced it would be rolling out "Fleets" — self-deleting tweets with a lifespan of only 24 hours. This put Twitter on equal footing with Instagram's "Stories" feature, which allows users to post content with a built-in expiration date.In the initial, limited rollout of Fleets, Twitter reported that the feature showed advantages over the platform's standard offering. Twitter Comms tweeted that initial testing looked promising, stating that it was seeing "less abuse with Fleets" with only a "small percentage" of Fleets being reported each day.Whether this early indicator was a symptom of the limited rollout or users viewing self-deleting abuse as a problem that solves itself, the wider rollout wasn't nearly as easy as earlier indicators nor was it relatively abuse free. Fleet’s full debut arrived in the wake of an incredibly contentious U.S. presidential election — one marred by election interference accusations and a constant barrage of misinformation. The full rollout also came after nearly a year of a worldwide pandemic, which resulted in a constant flow of misinformation across multiple social media platforms globally.While amplification of misinformation contained in Fleets was somewhat tempered by their innate ephemerality, as well as very limited interaction options, it seemed unclear how — or how well — Twitter was handling moderating misinformation spread by the new communication option. Extremism researcher Marc-Andre Argentino was able to send out a series of "fleets" containing misinformation and banned URLS, noting that Twitter only flagged one that asserted a link between the virus and cell phone towers.Samantha Cole reported other Fleet moderation issues. Writing for Motherboard, Cole noted that apparent glitches were allowing users to see Fleets from people they had blocked, as well as Fleets from people who had blocked them. Failing to maintain settings that users set up to block or mute others created more avenues for abuse. Cole also pointed out that users weren't being notified when their tweets were added to Fleets, providing abusive users with another option to harass while the targets of abuse remain unaware.Company Considerations:

We've noted for a while there's a weird myopia occurring in internet policy. As in, "big tech" (namely Facebook, Google, and Amazon) get a relentless amount of Congressional and policy wonk attention for their various, and sometimes painfully idiotic behaviors. At the same time, just an adorable smattering of serious policy attention is being given to a wide array of equally problematic but clearly monopolized industries (banking, airlines, insurance, energy), or internet-connected sectors that engage in many of the same (or sometimes worse) behaviors, be they adtech or U.S. telecom.Case in point: while the entirety of U.S. policy experts, lawmakers, journalists, and academics (justifiably) fixated on the Facebook whistleblower train wreck, a story popped up about AT&T. Basically, it showcased how AT&T not only provided the lion's share of funding for the propaganda-laden OAN cable TV "news" network, the entire thing was AT&T's idea in the first place, and simply wouldn't exist without AT&T's consistent support:

We've noted for a while there's a weird myopia occurring in internet policy. As in, "big tech" (namely Facebook, Google, and Amazon) get a relentless amount of Congressional and policy wonk attention for their various, and sometimes painfully idiotic behaviors. At the same time, just an adorable smattering of serious policy attention is being given to a wide array of equally problematic but clearly monopolized industries (banking, airlines, insurance, energy), or internet-connected sectors that engage in many of the same (or sometimes worse) behaviors, be they adtech or U.S. telecom.Case in point: while the entirety of U.S. policy experts, lawmakers, journalists, and academics (justifiably) fixated on the Facebook whistleblower train wreck, a story popped up about AT&T. Basically, it showcased how AT&T not only provided the lion's share of funding for the propaganda-laden OAN cable TV "news" network, the entire thing was AT&T's idea in the first place, and simply wouldn't exist without AT&T's consistent support:

We've been running our Greenhouse discussion on content moderation at the infrastructure level for a bit now, and normally all of the posts for these discussions come from expert guest commentators. However, I'm going to add my voice to the collection here because there's one topic that I haven't seen covered, and which is important, because it comes up whenever I'm talking to people about content moderation at the infrastructure level: do we need a new taxonomy for internet infrastructure to better have this discussion?The thinking here is that the traditional OSI model of the internet layers is somewhat outdated and not particularly relevant to discussions such as this one. Also, it's hellishly confusing as is easily demonstrated by this fun Google box of "people also ask" on a search on "internet layers."Clearly, lots of people are confused.Even just thinking about what counts as infrastructure can be confusing. One of my regular examples is Zoom, the video conferencing app that has become standard and required during the COVID pandemic: is that infrastructure? Is that edge? It has elements of both.But the underlying concern in this entire discussion is that most of the debate around content moderation is about clear edge providers: the services that definitely touch the end users: Facebook, Twitter, YouTube, etc. And, as I noted in my opening piece, there is a real concern that because the debate focuses on those companies, and there appears to be tremendous appetite for policy making and regulating those edge providers, that any new regulations may not realize how they will also impact infrastructure providers, where the impact could be much more seismic.Given all that, many people have suggested that a "new taxonomy" might be useful, to help "carve out" infrastructure services from any new regulations regarding moderation. It's not hard to understand a concept like "maybe this rule should apply to social media sites, but not to domain registrars" for example.However, the dangers in building up such a taxonomy greatly outweigh any such benefits. First, as noted earlier, any new taxonomy is going to be fraught with difficult questions. It's not always clear what really is infrastructure these days. We've already discussed how financial intermediaries are, in effect infrastructure for the internet these days -- and that's a very different participant than the traditional OSI model of internet layers. Same with advertising firms. And I've already mentioned Zoom as a company that clearly has an edge component, but feels more like it should be considered infrastructure. Part of that is just the nature of how the internet works, in which some of the layers are merged. Marc Andreessen famously noted that software eats the world, but the internet itself is subsuming more and more traditional infrastructure as well -- and that creates complications.On top of that, this is an extremely dynamic world. Part of the reason why the OSI model feels obsolete is because it is. Things change, and they can change fairly rapidly on the internet. So any taxonomy might be obsolete by the time it's created, and that's extremely dangerous if the plan is to use it for classifying services for the purpose of regulation.The final concern with such a taxonomy is simply that it seems likely to encourage regulatory approaches in places where it's not clear if it's actually needed. If the intent of such a taxonomy is to help lawmakers write a law that only puts its focus on the edge players, that's unlikely how it will remain. Once such a mapping is in place, the temptation (instead) will simply be to create new rules for each layer of the new stack.A new taxonomy may sound good as a first pass, but it will inevitably create more problems than it solves.Techdirt and EFF are collaborating on this Techdirt Greenhouse discussion. On October 6th from 9am to noon PT, we'll have many of this series' authors discussing and debating their pieces in front of a live virtual audience (register to attend here).

The new hotness for law enforcement isn't all that new. But it is still very hot, a better way to amass a list of suspects when you don't have any particular suspect in mind. Aiding and abetting in the new bulk collection is Google, which has a collection of location info plenty of law enforcement agencies find useful.There's very little governing this collection or its access by government agencies. Most seem to be relying on the Third Party Doctrine to save their searches, which may use warrants but do not use probable cause beyond the probability that Google houses the location data they're seeking.Law enforcement agencies at both the local and federal levels have availed themselves of this data, using "geofences" to contain the location data sought by so-called "reverse warrants." Once they have the data points, investigators try to determine who the most likely suspect(s) is. That becomes a bigger problem when the area contained in the geofence contains hundreds or thousands of people who did not commit the crime being investigated.These warrants have been used to seek suspects in incidents ranging from arson to... um... protesting police violence. They've also been used to track down suspects alleged to have raided the US Capitol building on January 6, 2021 -- the day some Trump supporters decided (with the support of several prominent Republicans, including the recently de-elected president) that they could change the outcome of a national election if they committed a bunch of federal crimes.Plenty of those suspects outed themselves on social media. For everyone else, there's reverse warrants, as reported by Wired. (h/t Michael Vario)

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Here we go again. Yesterday, the Facebook whistleblower, Frances Haugen, testified before the Senate Commerce Committee. Frankly, she came across as pretty credible and thoughtful, even if I completely disagree with some of her suggestions. I think she's correct about some of the problems she witnessed, and the misalignment of incentives facing Facebook's senior management. However, her understanding of the possible approaches to deal with it is, unfortunately, a mixed bag.Of course, for the Senators in the hearing, it became the expected exercise in confirmation bias, in which they each insisted that their plan to fix the internet would solve the problems Haugen detailed. And, not surprisingly, many of them insisted that Section 230 was the issue, and that if you magically changed 230 and made companies more liable, they'd somehow be better. Leaving aside that there is zero evidence to support this (and plenty of evidence to suggest the opposite is true), the most telling bit in all of this is that if you think changing Section 230 is the answer Facebook agrees with you. It's exactly what Facebook wants. See the smarmy, tone-deaf, self-serving statement the company put out in response to the hearing:

So for years we've talked about the growing threat of SIM hijacking, which involves an attacker covertly porting out your phone number from right underneath your nose (sometimes with the help of bribed or conned wireless carrier employees). Once they have your phone identity, they have access to most of your personal accounts secured by two-factor SMS authentication, opening the door to the theft of social media accounts or the draining of your cryptocurrency account. If you're really unlucky, the hackers will harrass the hell out of you in a bid to extort you even further.It's a huge mess, and the both the criminal complaints -- and lawsuits against wireless carriers for not doing more to protect their users -- have been piling up for several years. For several years, Senators like Ron Wyden have been sending letters to the FCC asking the nation's top telecom regulator to, you know, do something. After years of inaction the agency appears to have gotten the message, announcing a new plan to at least consider some new rules to make SIM hijacking more difficult.Most of the proposal involves nudging wireless carriers to do things they should have done long ago. Such as updating FCC Customer Proprietary Network Information (CPNI) and Local Number Portability rules to require wireless carriers adopt secure methods of confirming the customer’s identity before porting out a customer’s phone number to a new device or carrier (duh). As well as requiring that wireless carriers immediately notify you when somebody tries to port out your phone number without your permission (double duh):

Earlier this year, a data retention law passed by the Belgian government was overturned by the country's Constitutional Court. The law mandated retention of metadata on all calls and texts by residents for one year, just in case the government ever decided it wanted access to it. Acting on guidance from the EU Court on laws mandating indiscriminate data retention elsewhere in the Union, the Constitutional Court struck the law down, finding it was neither justified nor legal under CJEU precedent or under Belgium's own Constitution.

For over a year now, we have discussed Facebook's decision to require users of Oculus VR headsets to have active Facebook accounts linked to the devices in order for them to work properly. This decision came to be despite all the noise made by Oculus in 2014, when Facebook acquired the VR company, insisting that this very specific thing would not occur. Karl Bode, at the time, pointed out a number of potential issues this plan could cause, noting specifically that users could find their Oculus hardware broken for reasons not of their own making.

More cities are adopting an approach to mental health emergency calls that steers calls away from police officers and towards professionals who are trained to respond to mental health crises with something other than force deployment.Early results have shown promise in cities like Denver, Colorado and New York City, New York. These response teams are not only better suited to handling mental health calls, but they're less expensive than sending cops and/or needlessly involving the carceral system. Law enforcement agencies command outsized portions of city budgets. Shifting small portions of these budgets to alternatives like these makes better use of these funds, providing residents with options that are far more effective -- and cost effective -- than the usual method of sending more expensive government employees to respond to problems they're ill-equipped to handle.A couple of cities in California are experimenting with mental health response teams. The teams in use in Sacramento and Oakland were formed by residents in response to the tragic killing of a young man suffering from schizoaffective disorder by police officers.

As you know by now, much of the tech news cycle yesterday was dominated by the fact that Facebook appeared to erase itself from the internet via a botched BGP configuration. Hilarity ensued -- including my favorite bit about how Facebook's office badges weren't working because they relied on connecting to a Facebook server that could no longer be found (also, how in borking their own BGP, Facebook basically knocked out their own ability to fix it until they could get the right people who knew what to do to have physical access to the routers).But in talking to people who were upset about being cut off from Facebook, Instagram, WhatsApp, or Facebook Messenger, it was a good point to remind people that another benefit of a protocols, not platforms approach to these things is that it's way more resilient. If you're using Messenger and it's down, but can easily swap in a different tool and continue to communicate that's a much better, more resilient solution than relying on Facebook not to mess up. And that's on top of all the other benefits I laid out in my paper.In fact, a protocols approach also creates more incentives for better uptime from services, since continually screwing up for extended periods of times doesn't just mean losing ad revenue for a few hours, but it is much more likely to lead people to permanently switch to an alternative provider.Indeed, a key part of the value of the internet, originally, was in its resiliency of being highly distributed, rather than centralized, and how it could continue to work well if one part fell off the network. The increasing centralization/silo-ization of the internet has taken away much of that benefit. So, if anything, yesterday's mess should be seen as another reason to look more closely at a protocols-based approach to building new internet services.

In August, OnlyFans made the stunning announcement that it planned to ban sexually explicit content from its service. The site, which allows creators to post exclusive content and interact directly with subscribers, made its name as a host for sexually-oriented content. For a profitable website to announce a ban of the very content that helped establish it was surprising and dismaying to the sex workers and other creators who make a living on the site.OnlyFans is hardly the first site to face financial pressure related to the content it publishes. Advertiser pressure has been a hallmark of the publishing industry, whether in shaping what news is reported and published, or withdrawing support when a television series breaks new societal ground.Publishers across different kinds of media have historically been vulnerable to the demands of their financial supporters when it comes to restricting the kinds of media they distribute. And, with online advertising now accounting for the majority of total advertising spending in the U.S., we have seen advertisers recognize their power to influence how major social media sites moderate, the organization of campaigns like Stop Hate for Profit, or the development of “brand safety” standards for acceptable content.But OnlyFans wasn’t bowing to advertiser demands; instead, it says it faced an even more fundamental kind of pressure coming from its financial intermediaries. OnlyFans explained in a statement that it planned to ban explicit content “to comply with the requests of our banking partners and payout providers.”Financial intermediaries are key actors in the online content hosting ecosystem. The websites and apps that host people’s speech depend on banks, credit card companies, and payment processors to do everything from buying domain names and renting server space to paying their engineers and content moderators. Financial intermediaries are also essential for receiving payments from advertisers and ad networks, processing purchases, and enabling user subscriptions. Losing access to a bank account, or getting dropped by a payment processor, can make it impossible for a site to make money or pay its debts, and can result in the site getting knocked offline completely.This makes financial intermediaries obvious leverage points for censorship, including through government pressure. Government officials may target financial intermediaries with threats of legal action or reputational harm, as a way of pursuing censorship of speech that they cannot actually punish under the law.In 2010, for example, U.S Congressmen Joe Lieberman and Peter King reportedly pressured MasterCard in private to stop processing payments for Wikileaks; this came alongside a very public campaign of censure that Lieberman was conducting against the site. Ultimately, Wikileaks lost its access to so many banks, credit card companies, and payment processors that it had to temporarily suspend its operations; it now accepts donations through various cryptocurrencies or via donations made to the Wau Holland Foundation (which has led to pressure on the Foundation in turn).Credit card companies were also the target of the 2015 campaign by Sheriff Tom Dart to shutter Backpage.com. Dart had previously pursued charges against another classified-ads site, Craigslist, for solicitation of prostitution, based on the content of some ads posted by users, and had been told unequivocally by a district court that Section 230 barred such a prosecution.In pursuing Backpage for similar concerns about enabling prostitution, Dart took a different tack: He sent letters to Visa and MasterCard demanding that they “cease and desist” their business relationships with Backpage, implying that the companies could face civil and criminal charges. Dart also threatened to hold a damning press conference if the credit card companies did not sever their ties with the website.The credit card companies complied, and terminated services to Backpage. Backpage challenged Dart’s acts as unconstitutional government coercion and censorship in violation of the First Amendment. (CDT, EFF, and the Association for Alternative Newsmedia filed an amicus brief in support of Backpage’s First Amendment arguments in that case.) The Seventh Circuit agreed and ordered Dart to cease his unconstitutional pressure campaign.But this did not result in a return to the status quo, as the credit card companies declined to restore service to Backpage, showing how long-lasting the effects of such pressure can be. Backpage is now offline—but not because of Dart—the federal government seized the site as part of its prosecution of several Backpage executives, which was declared a mistrial earlier this month.Since that time, the pressures on payment processors and other financial intermediaries have only increased. FOSTA-SESTA, for example, created a vague new federal crime of “facilitation of prostitution” that has rendered many intermediaries uncertain about whether they face legal risk in association with content related to sex work. After Congress passed FOSTA in 2018, Reddit and Craigslist shuttered portions of their sites, multiple sites devoted to harm reduction went offline, and sites like Instagram, Patreon, Tumblr, and Twitch have taken increasingly strict stances against nudity and sexual content.So while advertisers may be largely motivated by commercial concerns and brand reputation, financial intermediaries such as banks and payment processors are also driven by concerns over legal risk when they try to limit what kinds of speech and speakers are accessible online.Financial institutions, in general, are highly regulated. Banks, for example, face obligations such as the “Customer Due Diligence” rule in the US, which requires them to verify the identity of account holders and develop a risk profile of their business. Concerns over legal risk can cause financial intermediaries to employ ham-handed automated screening techniques that lead to absurd outcomes, such as when Paypal canceled the account of News Media Canada in 2017 for promoting the story “Syrian Family Adopts To New Life”, or when Venmo (which is owned by PayPal) reportedly blocked donations to the Palestine Children’s Relief Fund in May 2021.As pressures relating to online content and UGC-related businesses grow, some financial intermediaries are taking a more systemic approach to evaluating the risk that certain kinds of content pose to their own businesses. In this, financial intermediaries are mirroring a trend seen in content regulation debates more generally, on both sides of the Atlantic.MasterCard, for example, in April announced changes to its policy for processing payments related to adult entertainment. Starting October 15, MasterCard will require that banks connecting merchants to the MasterCard network certify that those merchants have processes in place to maintain age and consent documentation for the participants in sexually explicit content, along with specific “content control measures.”These include pre-publication review of content and a complaint procedure that can address reports of illegal or nonconsensual content within seven days, including a process by which people depicted in the content can request its removal (which MasterCard confusingly calls an “appeals” process). In other words, MasterCard is using its position as the second largest credit card network in the US to require banks to vet website operators’ content moderation processes—and potentially re-shaping the online adult content industry at the same time.Financial intermediaries are integral to online content creation and hosting, and their actions to censor specific content or enact PACT Act-style systemic oversight of content moderation processes should bring greater scrutiny on their role in the online speech ecosystem.As discussed above, these intermediaries are an attractive target for government actors seeking to censor surreptitiously and extralegally, and they may feel compelled to act cautiously if their legal obligations and potential liability are not clear. (For the history of this issue in the copyright and trademark field, see Annemarie Bridy’s 2015 article, Internet Payment Blockades.) Moreover, financial intermediaries are often several steps removed from the speech at issue and may not have a direct relationship with the speaker, which can make them even less likely to defend users’ speech interests when faced with legal or reputational risk.As is the case throughout the stack, we need more information from financial intermediaries about how they are exercising discretion over others’ speech. CDT joined EFF and twenty other human rights organizations in a recent letter to PayPal and Venmo, calling on those payment processors to publish regular transparency reports that disclose government demands for user data and account closures, as well as the companies’ own Terms of Service enforcement actions against account holders.Account holders also need to receive meaningful notice when their accounts are closed and provided the opportunity to appeal those decisions—something notably missing from MasterCard’s guidelines for what banks should require of website operators.Ultimately, OnlyFans reversed course on its porn ban and announced that they had “secured assurances necessary to support [their] diverse creator community” (It’s not clear if those assurances came from existing payment processors or if OnlyFans has found new financial intermediaries). But as payment processors, banks, and credit card companies continue to confront questions about their role in enabling access to speech online, they should learn from other intermediaries’ experience: once an intermediary starts making judgments about what lawful speech it will and won’t support, the demands on it to exercise that judgment only increase, and the scale of human behavior and expression enabled by the Internet is unimaginably huge. The ratchet of content moderation expectations only turns one way.Emma Llansó is the Director of CDT's Free Expression Project, where she works to promote law and policy that support Internet users' free expression rights in the United States, Europe, and around the world.Techdirt and EFF are collaborating on this Techdirt Greenhouse discussion. On October 6th from 9am to noon PT, we'll have many of this series' authors discussing and debating their pieces in front of a live virtual audience (register to attend here).

Last week, we celebrated 300 episodes of the Techdirt Podcast with a live stream, for which we brought back original co-hosts Dennis Yang and Hersh Reddy. You can watch the stream on YouTube, but now it's time to release the episode as normal! The subject was simple, but led the conversation in all kinds of interesting directions: how have our views on technology issues changed and evolved since the podcast started?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.

A couple of years ago, documents surfaced that showed the CBP was placing journalists, activists, and immigration lawyers on some form of a watchlist, which would allow agents and officers to subject these targets to additional scrutiny when they crossed the border. There were obvious civil liberties implications, ones the CBP seemed largely unconcerned about.The targeting appeared to be related to the "migrant caravan" that reached the border late in 2018 and performed a mass "incursion" on January 1, 2019. The CBP claimed it had only targeted those people because they had been involved in "violence" near the border late in 2018. It refused to explain what it meant by the word "involved" or how that was enough to ignore First Amendment protections. Nor did it explain why it was deliberately targeting US citizens not suspected to have been involved in any criminal activity. It also did not explain why it shared information on these targets with the government of Mexico, which then assisted in spying on this group of lawyers, journalists, and activists.The DHS Inspector General opened an investigation [PDF] of these actions. And it has arrived at the conclusion that this all looks pretty bad, but wasn't actually illegal. Read into that what you will.

In his post kicking off this series, Mike notes that, “the biggest concern with moving moderation decisions down the stack is that most infrastructure players only have a sledge hammer to deal with these questions, rather than a scalpel.” And, I agree with Jonathan Zittrain and other contributors that governments, activists, and others will increasingly reach down the stack to push for takedowns—and will probably get them.So, should we expect more blunt force infra layer takedowns or will infrastructure companies invest in more precise moderation tools? Which one is even worse?Given the choice to build infrastructure now, would you start with a scalpel? How about many scalpels? Or maybe something less severe but distributed and transparent, like clear plastic spoons everywhere! Will the moderation hurt less if we’re all in it together? With the distributed web, we may get to ask all these questions, and have a chance to make things better (or worse). How?Let me backup a moment for some mostly accurate natural history. In the 90s, to vastly oversimplify, there was web 1.0: static, server-side pages that arose, more manual than you'd like sometimes, maybe not so easy to search or monetize at scale, but fundamentally decentralized and open. We had webrings and manually curated search lists. Listening to Nirvana in my dorm room I read John Perry Barlow’s announcement that "We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different," in a green IRC window and believed.Ok, not every feature was that simple or open or decentralized. The specter of content moderation haunted the Internet from early days of email and bulletin boards. In 1978, a marketer for DEC sent out the first unsolicited commercial message on ARPANET and a few hundred people told him to knock it off, Gary! Voila, community moderation.Service providers like AOL and Prodigy offered portals through which users accessed the web and associated chat rooms, and the need to protect the brand led to predictable interventions. There's a Rosetta Stone of AOL content moderation guidelines from 1994 floating around to remind us that as long as there have been people expressing themselves online, there have been other people doing their best to create workable rule sets to govern that expression and endlessly failing in comic and tragic ways (“‘F--- you’ is vulgar” but ‘my *** hurts’ is ok”).Back in the Lascaux Cave there was probably someone identifying naughty animal parts and sneaking over with charcoal to darken them out, for the community, and storytellers who blamed all the community’s ills on that person.And then after the new millenium, little by little and then all at once, came Web 2.0—the Social Web. Javascript frameworks, personalization, everyone a creator and consumer within (not really that open) structures we now call "Platforms" (arguably even less open when using their proprietary mobile rather than web applications). It became much easier for anyone to create, connect, communicate, and distribute expression online without having to design or host their own pages. We got more efficient at tracking and ad targeting and using those algorithms to serve you things similar to the other things you liked.We all started saying a lot of stuff and never really stopped. If you're a fan of expression in general, and especially of people who previously didn't have great access to distribution channels expressing themselves more, that's a win. But let's be honest: 500 million tweets a day? We've been on an expression bender for years. And that means companies spending billions, and tens of thousands of enablers—paid and unpaid—supporting our speech bender. Are people happy with the moderation we're getting? Generally not. Try running a platform. The moderation is terrible and the portions are so large!Who’s asking for moderation? Virtually everyone in different ways. Governments want illegal content (CSAM, terrorist content) restricted on behalf of the people, and some also want harmful but legal content restricted in ways that are still unclear, also for the people. Many want harmful content restricted, which means different things depending on which people, which place, which culture, which content, which coffee roast you had this morning. Civil society groups generally want content restricted related to their areas of expertise and concern (except EFF, who will party like it's 1999 forever I hope).There are lots of types of expression where at least some people think moderation is appropriate, for different reasons; misinformation is different from doxxing is different from harassment is different from copyright infringement is different from spam. Often, the same team deals with election protection and kids eating Tide Pods (and does both surprisingly well, considering). There’s a lot to moderate and lots of mutually inconsistent demand to do it coming from every direction.Ok, so let’s make a better internet! Web 3 is happening and it is good. More specifically, as Chris Dixon recently put it, “We are now at the beginning of the Web 3 era, which combines the decentralized, community-governed ethos of Web 1 with the advanced, modern functionality of Web 2.” Don’t forget the blockchain. Assume that over the next few years, Web 3 infrastructure gets built out and flourishes—projects like Arweave, Filecoin, Polkadot, Sia, and Storj. And applications eventually proliferate; tools for expression, creativity, communication, all the things humans do online, all built in ways that embody the values of the DWeb.But wait, the social web experiment of the past 15 years led us to build multi-billion dollar institutions within companies aimed at mitigating harms (to individuals, groups, societies, cultural values) associated with online expression and conduct, and increasingly, complying with new regulations. Private courts. Private Supreme Courts. Teams for safeguarding public health and democratic elections. Tens of thousands poring over photos of nipples, asking, where do we draw the line? Are we going to do all that again? One tempting answer is, let’s not. Let’s fire all the moderators. What’s the worst that could happen?Another way of asking this question is -- what do we mean when we talk about “censorship resistant” distributed technologies? This has been an element of the DWeb since early days but it’s not very clear (to me at least) how resistant, which censorship, and in what ways.My hunch is that censorship resistance—in the purest sense of defaulting to immutable content with no possible later interventions affecting its availability—is probably not realistic in light of how people and governments currently respond to Web 2.0. The likely outcome is probably quick escalation to intense conflict with the majority of governments.And even for people who still favor a marketplace-of-ideas-grounded “rights” framework, I think they know better than to argue that the cure for CSAM is more speech. There will either have to be ways of intervening or the DWeb is going to be a bumpy ride. But “censorship resistant” in the sense of, “how do we build a system where it is not governments, or a small number of powerful, centralized companies that control the levers at the important choke points for expression?” Now we’re talking. Or as Paul Frazee from Beaker Brower and other distributed projects put it: “The question isn't ‘how do we make moderation impossible?’ The question is, how do we make moderation trustworthy?”So, when it comes to expression and by extension content moderation, how exactly are we going to do better? What could content moderation look like if done consistent with the spirit, principles, and architecture of Web 3? What principles can we look to as a guide?I think the broad principles will come as no surprise to anyone following this space over the past few years (and are not so different from those outlined in Corynne McSherry’s post). They include notice, transparency, due process, the availability of multiple venues for expression, and robust competition between options on many axes—including privacy and community norms, as well as the ability of users to structure their own experience as much as possible.Here are some recurring themes:

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I'm sure by now most of you have either seen or read about Facebook whistleblower Frances Haugen's appearance on 60 Minutes discussing in detail the many problems she saw within Facebook. I'm always a little skeptical about 60 Minutes these days, as the show has an unfortunately long history of misrepresenting things about the internet, and similarly a single person's claims about what's happening within a company are not always the most accurate. That said, what Haugen does have to say is still kind of eye opening, and certainly concerning.The key takeaway that many seem to be highlighting from the interview is Haugen noting that Facebook knows damn well that making the site better for users will make Facebook less money.

We've noted for a long time that the wireless industry is prone to being fairly lax on security and consumer privacy. One example is the recent rabbit hole of a scandal related to the industry's treatment of user location data, which carriers have long sold to a wide array of middlemen without much thought as to how this data could be (and routinely is) abused. Another example is the industry's refusal to address the longstanding flaws in Signaling System 7 (SS7, or Common Channel Signaling System 7 in the US), a series of protocols hackers can exploit to track user location, dodge encryption, and even record private conversations.Now this week, a wireless industry middleman that handles billions of texts every year has acknowledged its security isn't much to write home about either. A company by the name of Syniverse revealed that it was the target of a major attack in a September SEC filing, first noted by Motherboard. The filing reveals that an "individual or organization" gained unauthorized access to the company's databases "on several occasions." That in turn provided the intruder repeated access to the company's Electronic Data Transfer (EDT) environment compromising 235 of its corporate telecom clients.The scope of the potentially revealed data is, well, massive:

Some more unsettling news about law enforcement's close relationship to (or at least professional tolerance of) far-right groups linked to the January 6th raid of the Capitol building has come to light, thanks to transparency activists Distributed Denial of Secrets.Email accounts linked to several key members of the Oath Keepers -- four of whom are currently facing charges for their participation in the attack on the Capitol -- have been hacked, exposing communications between the Oath Keepers and law enforcement officers seeking to join the group.

Roughly a year ago, we discussed a lawsuit brought by K&K Promotions, the company that holds the trademark and publicity rights for the now-deceased stuntman Evel Knievel, against Disney. At issue was a character in Toy Story 4 named Duke Caboom, a toy version of a motorcycle stuntman that certainly had elements of homage to Knievel. But not just Knievel, which is important. Instead, a la several lawsuits Rockstar Games has faced over characters appearing in the Grand Theft Auto series, Caboom was an amalgam of retro-era stuntmen, not a faithful depiction of any one of them, including Knievel. And, while some who worked on the film even mentioned that Knievel was one of the inspiration points for the character, they also noted that Knievel's routine, garb, and mannerisms were hardly unique for stuntmen in that era. Despite that, K&K insisted that Caboom was a clear ripoff and appropriation of Knievel.Well, Disney moved to dismiss the case, claiming essentially the above: Duke Caboom is based on a compilation of retro-era stuntmen. And the court has now ruled, siding with Disney and dismissing the case.

There isn't a day that goes by where Tesla hasn't found itself in the news for all the wrong reasons. Like last week, when Texas police sued Tesla because one of the company's vehicles going 70 miles per hour in self-driving mode failed to function properly, injuring five officers.

Over the last few weeks we've been running pieces for our latest Techdirt Greenhouse discussion on questions around content moderation at the infrastructure layer. This time we're also doing a live workshop event to go with it, in which some of the authors of the pieces will present, leading into "table discussions" from attendees to explore some of the tradeoffs and challenges regarding content moderation. This will be happening this Wednesday, October 6th, from 9am PT to 12pm PT. If you're interested in taking part, please register to attend.We look forward to seeing you there!

Venue selection matters, as right-wing political commentator/defamation lawsuit loser Dan Bongino is now discovering. He sued the Daily Beast over an article about his apparent expulsion from the National Rifle Association's video channel, NRATV. After trying (and failing) to get a comment from Bongino about this ouster, reporter Lachlan Markay published his article, updating it later when Bongino decided he did actually want to talk about it.

The signs were clear right from the start: at some point, content moderation would inevitably move beyond user-generated platforms down to the infrastructure—the place where services operate the heavy machinery of the Internet and without which user-facing services cannot function. Ever since the often-forgotten incident when Amazon stopped hosting Wikileaks after US political pressure took place in 2010, there has been a steady uneasiness regarding the role infrastructure providers could end up playing in the future of content moderation.A glimpse of what this would look like came in 2017, when companies like Clouldflare and GoDaddy took affirmative action against content they considered problematic for their business models, in this case white supremacist websites that had been the subject of massive public opprobrium. Since then, that future has become the present reality as the list of infrastructure companies performing content moderation functions keeps growing.Content moderation has two inherent qualities that provide important context.First, content moderation is generally complex in real-world process design and implementation. There are a host of conflicting rights, diverse procedural norms and competing interests that come into play every time content is posted on the Internet; each case is unique and on some level so it should be treated.Second, content moderation is messy because the world is messy: the global nature of the Internet, economies of scale, societal realities and cultural differences create a multi-layered set of considerations that are difficult to reconcile.The bright spot in all this messiness and complexity is the hope of due process and the rule of law. The theory is that, in healthy and competitive markets, users have choice and therefore it becomes more difficult for any mistakes to scale. So, if a user’s post gets deleted on one platform, the user should have the option of posting it someplace else.Of course, such markets are difficult to accomplish and the current Internet market is certainly not in this category. But, the point here is that it is one thing to have one of your postings removed from Facebook and it is another to go completely offline if Cloudflare stops providing you their services. The stakes are completely different.For a long time, infrastructure providers were smart enough to stay out of the content business. The argument was that the actors who are responsible for the pipes of the Internet should not concern themselves with the kind of water that runs through them. Their agnosticism was encouraged because their main focus was to provide other services, including security, network reliability and performance.However, as the Internet evolved, so did the infrastructure providers’ relationship with content.In the early days of content moderation, what constituted infrastructure was more discernible and structured. People would usually refer to the Open System Interconnection (OSI) model as a useful analogy, especially with policy makers who were trying to identify the role and responsibilities various companies held in the Internet ecosystem.The Internet of today, however, is very different from those days. The layers of the Internet are not distinguishable any longer and, in many cases, participating actors are not just operating at the infrastructure or the application layers. At the same time, and as applications in the Internet were gaining in popularity and use, innovation started moving upstream.“Infrastructure” is now being nested on top of other “infrastructure” all within just layer 7 of the OSI stack. Things are not as clear-cut.This indicates that, in some ways, we should not be surprised that the content moderation conversations seem to gradually be moving downstream. A cloud provider that provides support to a host of different websites, platforms, news outlets or businesses, will inevitably have to deal with issues of content.A content delivery network (CDN) will unquestionably face, at some point, the moral dilemma of providing its services to businesses that walk a tightrope with harmful or even illegal content. It really comes down to a simple equation: if user-generated platforms don’t do their job, infrastructure providers will have to do it for them. And, they do. Increasingly often.If this is the reality, the question becomes what is the best way for infrastructure providers to do moderation considering current practices of content moderation, the significant chilling effects, and the often-missed trade-offs.If we are to follow the “framework, tools, principles” triad, we should be mindful to not reinvent any existing ecosystem. Content moderation is not new and, over the years, a combination of laws and self-regulatory norms ensures a relatively consistent, predictable and stable environment—at least most of the time.Section 230 of the CDA in the US, the eCommerce Directive in Europe, Marco Civil in Brazil and other laws around the world have succeeded in creating a space where users and businesses could manage their affairs effectively and know that judicial authorities would treat their cases equally.For content moderation at the infrastructure level, a framework based on certainty and consistency is even more of a priority. Legal theory instructs that lack of consistency can diminish the development of norms or it can undermine the way existing ones can manifest themselves. In a similar vein, lack of certainty means the inability to get organized in such a way that complies with the law. For infrastructure providers that support basic and day-to-day functions of the Internet, such a framework becomes indispensable.I often say that the Internet is not a monolith. This is not only to demonstrate how the Internet was never meant to perform one single thing, but also to show the importance of designing a legal framework that behaves the same. When we talk about predictability and certainty, we must be conscious of putting in place requirements of clarity, stability and intelligibility so that participating actors can make calculated and informed decisions about the legal consequences of their actions. That’s what made Section 230 a success for more than two decades.Frameworks without appropriate tools to implement and assess them, however, mean little. Tools are important as they can help maximize the benefits of processes, ultimately increasing flexibility, reducing complexity, and ensuring clarity. Content moderation has consistently been suffering from lack of tools that could clearly exhibit the effects of moderation. Think, for instance, all these times content is taken down and there is no way to say what the true effect is on free speech and on users.In this context, we need to think of tools as things that would allow us to better understand the scale and chilling effect that content moderation in the infrastructure causes. Here is what I wrote about this last year:

Despite the DOJ recently drawing heat for its targeting of journalists during internal leak investigations, a lot still hasn't changed about the way demands for data are handled by the feds. Over the past couple of decades, the DOJ and its components have been asking for and obtaining data from service providers, utilizing subpoenas and National Security Letters that come with indefinite gag orders attached.These orders swear recipients like Microsoft and Google to secrecy, forbidding them from notifying targeted customers and users. (Even Techdirt has been hit with one.) Unlike regular search warrants, where the target is made aware of the rummaging by the physical presence of law enforcement officers, warrants, subpoenas, and NSLs allow the government to go about its rummaging unnoticed.Reforms to surveillance powers by the USA Freedom Act have at least forced the government to perform periodic reviews of ongoing gag orders. It has also given companies a way to challenge gag orders and demands for data, but that's only useful if the companies have some idea who is being targeted. As this report on the ongoing abuse of gag orders by Jay Greene and Drew Harwell for the Washington Post points out, it's not always clear who the government is seeking information about. (Alternative link here.)

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Last year, Josh Hawley introduced one of his many, many pathetic attempts at changing Section 230. That bill, the "Limiting Section 230 Immunity to Good Samaritans Act" would create a private right of action allowing individuals to sue any social media company if they were unhappy that some of their content was removed, and to seek a payout. The obvious implication, as with a ton of bad faith claims by populists who pretend to be "conservative" is that websites shouldn't do any moderation at all.However, this week, Hawley introduced another bill to attack Facebook and to create another private right of action against basically any website -- except this time the private right of action is for anyone who feels their "mental health" was harmed by content on that website. Contrary to what Hawley-loving propagandist rag "The Daily Caller" falsely claims, this bill doesn't actually "amend" Section 230, it simply uses the definition of an interactive computer service from 230, and introduces a weird new liability regime that is in total conflict with 230 (and with Hawley's previous bill -- but when you're culture warrioring and trying to be the face of the new insurrectionists, who has time for little things like consistency?). The Federal Big Tech Tort Act is a bunch of silly performative nonsense.It used to be that Republicans were the party that was dead set against opening up new private rights of action and giving tort lawyers new ways to drag people and companies into court. No longer, I guess. Amusingly, Hawley's bill shares its DNA with Senator Amy Klobuchar's equally silly bill to hold social media companies liable for misinformation. The key part in the Hawley bill:

We've noted for a while how the world's telecom executives have a fairly entrenched entitlement mindset. As in, they often tend to jealously eye streaming and online ad revenues and assume they're inherently owed a cut of those revenues just because at some point they traveled on their networks. You saw this hubris at play during AT&T's claims that "big tech" gets a "free ride" on their networks, which insisted that companies like Google should pay them significant, additional troll tolls "just because" (which triggered the entire net neutrality fight in the States).AT&T pretty solidly established this entitlement mindset domestically, and I've watched it slowly exported overseas. Like this week in South Korea, where South Korean broadband provider SK Broadband sued Netflix simply because its new TV show, Squid Game, is popular. Basically, the lawsuit argues, because the show is so popular and is driving a surge in bandwidth consumption among South Koreans watching it, Netflix is somehow obligated to pay the ISP more money:

This week, our first place winner on the insightful side is sumgai with a comment about the disastrous new bill regulating online commerce:

Five Years AgoThis week in 2016, we looked at how the internet of things was fueling an unprecedented rise in DDoS attacks, while the DHS was offering its unsolicitied (and likely unhelpful) assistance in securing it, and we also learned more about the likely reason for the NSA's trove of hacking tools being discovered and published. The CFAA emerged at the center of a political dispute, the California Supreme Court agreed to hear an important Section 230 case, and the DOJ decided that copyright infringement could be grounds for deportation, while the RIAA was going around acting as though SOPA had passed, even though it didn't. Also, in an extremely silly move, four state AGs filed a lawsuit to block the IANA transition, which was quickly tossed out by a judge.Ten Years AgoThis week in 2011, the Senate let the copyright lobby set up shop in the Senate building during the PROTECT IP debate, while the House version of the bill added in a provision covering cyberlockers, an "analyst" from Disney was cheerleading for the bill. Canadian politicians were pushing for their own terrible copyright reform law, while we looked at how the EU's copyright extension was harming classical music. Multiple countries were getting ready to sign ACTA on the weekend, until it turned out that some weren't actually going to do it, even though the US planned to use its signing statement to defend the unconstitutional aspects of the agreement. Meanwhile, Righthaven suffered another huge loss, and continued trying to avoid paying legal fees, though it only succeeded in getting a brief reprieve.Fifteen Years AgoThis week in 2006, the fight between Google and European newspapers continued with the papers trying to reinvent robots.txt, new companies were trying to find a way to charge money for social media, and we wondered if it was possible to see the actual FCC data on broadband penetration. Microsoft was going after the anonymous person who cracked their copy protection system, the MPAA was touting its bizarre use of DVD-sniffing dogs, and Hollywood was raising the stakes in its claims of the damages from piracy. Meanwhile, a judge sadly agreed with the RIAA that Morpheus had induced infringement, while Limewire was hitting back hard against the RIAA with a lawsuit alleging antitrust and consumer fraud.

Over the past several months, there have been a couple of stories that certainly had owners of Sony PlayStation 4 and PlayStation 3 consoles completely wigging out. First came Sony's announcement that it was going to shut down support for the PlayStation Store and PlayStation Network on those two consoles. This briefly freaked everyone out, the thinking being that digitally purchased games would be disappeared. Sony confirmed that wouldn't be the case, but there was still the question of game and art preservation, given that no new purchases would be allowed and that in-game purchases and DLC wouldn't be spared for those who bought them. As a result of the outcry, Sony reversed course for both consoles specifically for access to the PlayStation Store, nullifying the debate. Except that immediately afterward came word of an issue with the PS3 and PS4 console batteries and the way they check in with the PlayStation Network (PSN) to allow users to play digital or physical game media. With the PSN still sunsetting on those consoles, the batteries wouldn't be able to check in, and would essentially render the console and all the games users had worthless and unplayable.But now that too has been corrected by Sony, albeit in a completely unannounced fashion.

Techdirt's coverage of open access -- the idea that the fruits of publicly-funded scholarship should be freely available to all -- shows that the results so far have been mixed. On the one hand, many journals have moved to an open access model. On the other, the overall subscription costs for academic institutions have not gone down, and neither have the excessive profit margins of academic publishers. Despite that success in fending off this attempt to re-invent the way academic work is disseminated, publishers want more. In particular, they want more money and more power. In an important new paper, a group of researchers warn that companies now aim to own the entire academic publishing stack:

It looks like landlords in Florida want to get back to things that made this country great: bigotry, segregation, and oppression. And look who's willing to pitch in! Why, it's that old friend of racists, local law enforcement. (h/t WarOnPrivacy)

Content moderation frameworks and toothless oversight boards legitimize the concentration of power in the hands of infrastructure providers and platforms. This gives them, and not democratic processes and structures, the discretion to egregiously shape the public debate.In 1964 Marshall McLuhan wrote that content is a “juicy piece of meat carried by the burglar to distract the watchdog of the mind” (McLuhan 2013). I will argue that today this is more true than ever. If we want to solve the issue of human rights violating content, we will need to look at the structures that allow for the production of it. Therefore, I will argue that “content” is a false category, and that infrastructure is often misunderstood as a largely material object whereas it is a complex assemblage of people, practices, institutions, cultures, and devices. To address the false premises on which the concept of “infrastructural content moderation” is based, I propose an analytical framework that does not separate the context from the content but rather offers an integrative approach to address online discourse production.Aristotle famously wrote that there is no matter without form and no form without matter. Similarly, Bergson said that color does not exist as an abstract category, but only as a quality of a substance. The same holds true for content on the Internet. A Facebook post is something different than a post on Tiktok, a blog post, a tweet, or a YouTube comment. One understands these messages differently. Just like one understands a sentence spoken in a comic club differently than one spoken in parliament, and a sentence uttered in a forest is different from one in a theater.It has taken centuries for legal and social rules for public and private spaces to develop. The Internet is a relatively new space that practically is largely private, but feels like the world's largest public space. It will take time for rules to sediment for this space. In the development of new rules, one should commence the interrogation of different possibilities with a simple question: Cui bono? Who profits?Julie Cohen describes in her book ‘Between Truth and Power’ that the shift in the image from the Internet as an “electronic superhighway” to a “cloud” should by no means be taken lightly. At least a highway has rules, a cloud has none. In the image that the Internet infrastructure industry has shown us, the Internet infrastructure is a given. A modular space on which things can be built, a neutral platform for economic growth and development, that would only suffer from regulation.But Keller Easterling explains that “infrastructure sets the invisible rules that govern the spaces of our everyday lives” and that “changes to the globalising world are being written, not in the language of law and diplomacy, but rather in the language of infrastructure.” She describes the practice of the development, implementation, and operation of these infrastructures as “extrastatecraft,” because these powers used to belong to nation states, but are now taken up by transnational corporations.The development, standardization, and implementation of Internet infrastructure is inherently political. Janet Abbate particularly says that: ‘the debate over network protocols illustrates how standards can be politics by other means. Denardis’ 2014 book ‘Protocol politics’ furthers the work by Abbate and showcases how “debates over protocols bring[ing] to light unspoken conflicts of interest.” Whereas the work of DeNardis focuses mostly on Internet protocols, she does emphasize that “politics are not external to technical architecture.”When one looks at the infrastructure that undergirds the exchange of discourse, we should not see it as a neutral foundation for platforms and services, but rather as a shaping force that has both direct and indirect power. This shaping power is what sets the rules for everything that happens on top of it, which is more influential than the haphazard removal of a particular user or group. This shaping power is deeply entrenched in the standardization and governance bodies where the Internet infrastructure is produced.Upon interrogation of these standards and governance bodies, one cannot help but notice, as the research by Corinne Cath-Speth shows, that the bodies can be characterized by a laissez-faire approach to technology development and defy any strong accountability measures. This culture is characterized by a libertarian, American, masculine approach that values individualism. It is exactly these qualities that perpetuate the idea that regulation will “break the Internet” and that individual choice and responsibility is the only way forward for the Internet infrastructure.This attitude is deeply ironic because for the first half of its existence the Internet was heavily funded by states, and the second half has been characterized by oligopolies. However, this sense of individual engineering pride keeps the status quo intact, which means a continuous exclusion of those who do not want to succumb to this culture, mostly women, people of color, and those from outside of Europe and the United States. This in turn strengthens a network topology that reinforces power structures of dominance and extraction based in the United States and Europe. Submarine cables now cover the whole world, but network traffic still largely centers in Europe and the United States, maps that very much resemble those of colonial trade routes.The Internet infrastructure and its standardization and governance regime exist to increase interconnection between transnational corporations, largely based in the United States and Europe. Expanding the data flows to and through these networks is what these networks and their governance is optimized for. This has transformed the Internet from a medium of connection to a medium of extraction. Solely focusing on the outgrowths of this culture and regime by focusing on content moderation would be naive at best, and legitimizing an extractive practice at worst.Reflections on the practice of content moderation should not solely focus on the content that should, or should not be, moderated, but rather on the structures that incentivize and perpetuate such speech. It is the responsibility of communication infrastructure providers to meaningfully engage with the human rights impact of their actions, and their chain responsibility. Thus far, hardly any Internet infrastructure provider has done so sufficiently. The industry’s lack of meaningful adoption and integration of the United Nations Guiding Principles for Business and Human Rights reminisce of the tobacco industry’s opposition against health codes, and their lobbying budgets reflect the same fear for regulation.Civil society should not be afraid to present strong alternative network ideologies that rely on free association and self-determination by end users. The priority of the networking and content provision industry should be to address problems of inequity and inequality, not to extract more private data to be sold to advertising and surveillance companies (which are anyhow based on flawed premises). The Internet is the public square of the world, we should better reimagine it as one. This means that the strongest actors should live up to their responsibilities, and not seek to wait for civil society to organize themselves and demand accountability, and fix their problems. Here we can only refer back to Spiderman: with great power, comes great responsibility. It is high time that the Internet infrastructure sector lives up to that.Niels ten Oever is a postdoctoral researcher with the ‘Making the hidden visible project at the Media Studies department at the University of Amsterdam.Techdirt and EFF are collaborating on this Techdirt Greenhouse discussion. On October 6th from 9am to noon PT, we'll have many of this series' authors discussing and debating their pieces in front of a live virtual audience (register to attend here).

It's been a while since we've seen a really good response letter to a -- as Ken White likes to call them -- "bumptious" legal threat letter. But here we've got one, courtesy of Ken himself, representing Chad Loder. Loder is a writer who has been calling out propagandist Andy Ngo and The Post Millennial, a propagandist rag that Ngo sometimes writes for. The Post Millennial was apparently sad about that and sent Loder a very silly legal threat:

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Fifteen years ago, the best example of how out of touch elected officials were regarding the internet was Senator Ted Stevens' infamous "it's a series of tubes" speech (which started out "I just the other day got, an internet was sent by my staff at 10 o'clock in the morning on Friday and I just got it yesterday.") Over the years, this unwillingness of those who put themselves in the position to regulate the internet to actually bother to understand it has become something of an unfortunate running joke. A decade ago, in the midst of the fight over SOPA/PIPA, we pointed out that it's no longer okay for Congress to not know how the internet works. And yet, a decade has passed and things have not gotten much better. Senator Ron Johnson tried to compare the internet to a bridge into a small creek. Senator Orrin Hatch has no clue how Facebook makes money.And now there's a new addition to the list of examples of totally clueless Senators seeking to regulate something they clearly don't understand. This time it's Senator Richard Blumenthal, who has been grandstanding about how he wants to take on the internet since long before he was elected to the Senate. He created the most cringe-worthy media clip of a politician in a while while trying to press Facebook's head of safety Antigone Davis during a Senate hearing on "grandstanding about how we all hate Facebook" (not the actual subject matter, but close enough).

We've noted for a while that the entirety of DC has a blind spot when it comes to discussing the U.S. broadband problem. As in, U.S. broadband is plagued by regional monopolies that literally pay Congress to pretend the problem isn't happening. That's not an opinion. U.S. broadband is slow, expensive, patchy, with terrible customer service due to two clear things: regional monopolization (aka market failure), and state and federal regulatory capture (aka corruption). That the telecom industry employs an entire cottage industry of think tankers, consultants, and policy wonks to pretend this isn't true doesn't change reality.But notice when regulators, politicians, and many news outlets discuss the problem, it's usually framed in this nebulous, causation free way. About 90% of the time, the problem is dubbed the "digital divide." But the cause of this broadband divide is always left utterly nebulous and causation free. It's almost pathological. Seriously, look at any news story about the "digital divide" in the last three months and try to find one that clearly points out that the direct cause of the problem is regional telecom monopolies and the corruption that protects them. You won't find it.This phenomenon again showed up this week in a CNET interview with Jessica Rosenworcel, who appears to be the top candidate in the Biden Administration's glacial pursuit of a permanent FCC boss. In the article, CNET talks repeatedly about the U.S. broadband problem without once mentioning that telecom monopolies exist, and are the primary reason U.S. broadband is painfully mediocre:

When the New York Times reported Facebook’s plan to improve its reputation, the fact that the initiative was called “Project Amplify” wasn’t a surprise. “Amplification” is at the core of the Facebook brand, and “amplify the good” is a central concept in its PR playbook.Amplify the goodMark Zuckerberg initiated this talking point in 2018. “I think that we have a clear responsibility to make sure that the good is amplified and to do everything we can to mitigate the bad,” he said after the Russian election meddling and the killings in Myanmar.Then, other Facebook executives adopted this notion regardless of the issue at hand. The best example is Adam Mosseri, Head of Instagram.In July 2019, addressing online bullying, Mosseri said: “Technology isn’t inherently good or bad in the first place …. And social media, as a type of technology, is often an amplifier. It’s on us to make sure we’re amplifying the good and not amplifying the bad.”In January 2021, After January 6 Capitol attack, Mosseri said: “Social media isn’t good or bad, like any technology, it just is. But social media is specifically a great amplifier. It can amplify good and bad. It’s our responsibility to make sure that we amplify more good and less bad.”In September 2021, after a week of exposés about Facebook by the WSJ, The Facebook Files, Mosseri was assigned to defend the company once again. “When you connect people, whether it’s online or offline, good things can happen and bad things can happen,” he said in his opening statement. “I think that what is important is that the industry as a whole tries to understand both those positive and negative outcomes, and do all they can to magnify the positive and to identify and address the negative outcomes.”Mosseri clearly uses the same messaging document, but Facebook’s PR template contains more talking points. Facebook also asserts that there have always been bad people or behaviors, and the current connectivity simply makes them more visible.A mirror for the uglyAccording to the “visibility” narrative, tech platforms simply reflect the beauty and ugliness in the world. Thus, social media is sometimes a cesspool because humanity is sometimes a cesspool.Mark Zuckerberg addresses this issue several times, with the main message that it is just human nature. Nick Clegg, VP of Global Affairs and Communications, repeatedly shared the same mindset. “When society is divided and tensions run high, those divisions play out on social media. Platforms like Facebook hold up a mirror to society,” he wrote in 2020. “With more than 3 billion people using Facebook’s apps every month, everything that is good, bad misogynist and ugly in our societies will find expression on our platform.” “Social media broadly, and messaging apps and technology, are a reflection of humanity,” Adam Mosseri repeated. “We communicated offline, and all of a sudden, now we’re also communicating online. Because we’re communicating online, we can see some of the ugly things we missed before. Some of the great and wonderful things, too.”This “mirror of society” statement is being criticized for being intentionally uncomplicated. Because the ability to shape, not merely reflect, people’s preferences and behavior is also how Facebook makes money. Therefore, despite Facebook’s recurring statements, it is accused of not reflecting but increasing the bad and ugly.Amplify the bad“These platforms aren’t simply pointing out the existence of these dark corners of humanity,” John Paczkowski from BuzzFeed News, told me. “They are amplifying them and broadcasting them. That is different.”After an accumulation of deadly events, such as the Christchurch shooting, Kara Swisher wrote about amplified hate and “murderous intent that leaps off the screen and into real life.” She argued that “While this kind of hate has indeed littered the annals of human history since its beginnings, technology has amplified it in a way that has been truly destructive.”It is believed that bad behavior (e.g., disinformation) is induced by the way that tech platforms are designed to maximize engagement. Thus, Facebook’s victim-centric approach refuses to acknowledge that perhaps bad actors don’t misuse its platform but rather use it as intended (“machine for virality”).Ev Williams, the co-founder of Blogger, Twitter, and Medium, said he now believes that he had failed to appreciate the risks of putting such powerful tools in users’ hands with minimal oversight. “One of the things we’ve seen in the past few years is that technology doesn’t just accelerate and amplify human behavior,” he wrote. “It creates feedback loops that can fundamentally change the nature of how people interact and societies move (in ways that probably none of us predicted).”So, things had turned toxic in ways that tech founders didn’t predict. Should they have foreseen them? According to Mark Zuckerberg, an era of tech optimism led to unintended consequences. “For the first decade, we really focused on all the good that connecting people brings … But it’s clear now that we didn’t do enough,” he said After the Cambridge Analytica scandal. He admitted they didn’t think through “how people could use these tools to do harm as well.” Several years after the Techlash coverage began, there’s a consensus that they needed to “do more” to purposefully deny the ability to abuse them.One of the reasons it was (and still is) a challenging task is their scale. According to this theme, the growth-at-all-cost “blinded” them, and they turned so big to be successfully managed at all. Due to their bigness, they are always in a game of cat-and-mouse with bad actors. “When you have hundreds of millions of users, it is impossible to keep track of all the ways they are using and abusing your systems,” Casey Newton, from the Platformer newsletter, explained in an interview. “They are always playing catch-up with their own messes.”Due to the unprecedented scale at which Facebook operates, it is dependent on algorithms. Then, it claims that any perceived errors result from “algorithms that need tweaking” or “artificial intelligence that needs more training data.” But is it just an automation issue? It depends on who you ask.The algorithms’ fault vs. the people who build them or use themCritics say that machines are only as good as the rules built into them. “Google, Twitter, and Facebook have all regularly shifted the blame to algorithms, but companies write the algorithms, making them responsible for what they churn out.”But platforms tend to avoid this responsibility. When ProPublica revealed that Facebook’s algorithms allowed advertisers to target users interested in “How to burn Jews” or “History of why Jews ruin the world,” Facebook’s response was: The anti-Semitic categories were created by an algorithm rather than by people.At the same time, Facebook‘s Nick Clegg argued that human agency should not be removed from the equation. In a post titled “You and the Algorithm: It takes two to Tango,” he criticized the dystopian depictions of their algorithms, in which “people are portrayed as powerless victims, robbed of their free will.” As if “Humans have become the playthings of manipulative algorithmic systems.”“Consider, for example, the presence of bad and polarizing content on private messaging apps - iMessage, Signal, Telegram, WhatsApp - used by billions of people around the world. None of those apps deploy content or ranking algorithms. It’s just humans talking to humans without any machine getting in the way,” Clegg wrote. “In many respects, it would be easier to blame everything on algorithms, but there are deeper and more complex societal forces at play. We need to look at ourselves in the mirror and not wrap ourselves in the false comfort that we have simply been manipulated by machines all along.”Fixing the machine vs. the underlying societal problemsNonetheless, there are various attempts to fix the “broken machine,” and some potential fixes are discussed more often. One of the loudest calls is for tougher regulation – legislation should be passed to implement reforms. Yet, many remain pessimistic about the prospects for policy rules and oversight because regulators tend not to keep pace with tech developments. Also, there’s no silver-bullet solution, and most of the recent proposals are overly simplistic.“Fixing Silicon Valley’s problems requires a scalpel, not an axe,” said Dylan Byers. However, tech platforms are faced with a new ecosystem of opposition, including Democrats and Republicans, antitrust theorists, privacy advocates, and European regulators. They all carry axes.For instance, there are many new proposals to amend Section 230 of the Communications Decency Act. But, as Casey Newton noted, “it won’t fix our politics, or our broken media, or our online discourse, and it’s disingenuous for politicians to suggest that it would.”When self-regulation is proposed, there is an inherent commercial conflict since platforms are in the business of making money for their shareholders. Facebook only acted after problems escalated and caused real damage. For example, only after the mob violence in India (another problem that existed before WhatsApp, and may have been amplified by the app) the company instituted rules to limit WhatsApp’s ‘virality.’” Other algorithms have been altered in order to eliminate conspiracy theories and their groups from being highly recommended.Restoring more human control requires different remedies: from decentralization projects, which seek to shift the ownership of personal data away from Big Tech and back toward users, to media literacy, which seek to formally educate people of all ages about the way tech systems function, as well as encourage appropriate, healthy uses.The proposed solutions could certainly be helpful, and they all should be pursued. Unfortunately, they are unlikely to be adequate. We will probably have an easier time fixing algorithms, or the design of our technology than we will have fixing society, and humanity has to deal with humanity’s problems.Techdirt’s Mike Masnick recently addressed the underlying societal problems that need fixing. “What we see - what Facebook and other social media have exposed – is often the consequences of huge societal failings.” He mentioned various problems with education, social safety nets, healthcare (especially mental healthcare), income inequality and corruption. Masnick concluded we should be trying to come up with better solutions for those issues rather than “insisting that Facebook can make it all go away if only they had a better algorithm or better employees.”We saw that with COVID-19 disinformation. After President Joe Biden blamed Facebook for “killing people,” and Facebook responded by saying they are “helping save lives,” I argued that this dichotomous debate sucks. Charlie Warzel called it (on his Galaxy Brian newsletter) “an unproductive, false binary of a conversation,” and he is absolutely right. Complex issues deserve far more nuance.I can’t think of a more complex issue than tech platforms’ impact on society, in general, and Facebook’s impact in particular. However, we seem to be stuck between the storylines discussed above, of “amplifying the good vs. the bad.” It is as if you can only think favorably or negatively about “the machine,” and you must pick a side and adhere to its intensified narrative.Keeping to a single narrative can escalate rhetoric and create an insufficient discussion, as evidenced by a recent Mother Jones article. The “Why Facebook won’t stop pushing propaganda” piece describes how a woman tried to become Montevallo’s first black mayor and lost. Montevallo is a very small town in Alabama (7,000 people), whose population is two-thirds white. Her race loss was blamed on Facebook: The rampart of misinformation and rumors about her affected the voting.While we can’t know what got people to vote one way or another, we should consider that racism was prevalent in places like Alabama for a long time. Facebook was the candidate's primary tool for her campaign, highlighting the good things about her historic nomination. Then, racism was amplified in Facebook’s local groups. In the article, the fault was centered on the algorithm amplification, on Facebook's “amplification of the bad.” Facebook’s argument that it only “reflects the ugly” does not hold true here if it makes it more robust. Yet, the root cause in this case remains the same, racism. Facebook “doing better” and amending its algorithms will not be enough unless we also address the source of the problem. WE can and should “do better,” as well.Dr. Nirit Weiss-Blatt is the author of The Techlash and Tech Crisis Communication

We've talked far too many times about how the DMCA takedown processes across internet industries as they stand are wide, wide open for abuse. From churches wielding copyright to attempt to silence critics engaging in protected speech, to lawyers using copyright to try to silence critics engaging in protected speech, to freaking political candidates abusing YouTube's DMCA notice process to silence critics engaging in protected speech... well, you get the idea. The point is that we've known for a long, long time that the current method by which the country and companies currently enforce copyright law tilts so heavily towards the accuser that it's an obvious avenue for misuse.And this is an issue created by bad actors big and small. Hell, apparently you cannot even criticique a sophomoric prank joke troop on YouTube without being targeted using copyright law.

The Los Angeles Police Department has spent years compiling a "gang database." The term "compile" is used loosely, because the LAPD decides people are gang members just because they know gang members, or are related to them, or live in the same buildings, or work near them, or pass through gang-controlled neighborhoods, or go to school with gang members, or just (as non-gang people are wont to do) wear clothes, shoes, and hats. It's ridiculous.And when that's not "inclusive" enough, LAPD officers fake it. LAPD officers have falsified records to justify unjustifiable stops and searches, something that ultimately resulted in criminal charges against three officers. But even with this wealth of bogus and barely supported information, the gang database (CALGANG) still has one glaring omission: the Los Angeles Sheriff's Department.

There has been a lot of focus on moderation as carried out by platforms—the rules social media companies base their decision on what content remains online. There has however been limited attention on how actors other than social media platforms, in this case governments, seek to regulate these platforms.Focusing more on African governments, they carry out this regulation primarily through laws. These laws can be broadly divided into two: direct and indirect regulatory laws. The direct regulatory laws can be seen in countries like Ethiopia and more recently in Nigeria. They are similar to Germany’s Network Enforcement Act and France’s Online Hate Speech Law that directly place responsibilities on platforms and require them to remove online hate speech within a specific time and failure of which attracts heavy sanctions.Section 8 of Ethiopia’s Hate Speech and Disinformation Prevention and Suppression Proclamation 1185/2020 provides for various responsibilities for social media platforms and actors. These responsibilities include the suppression and prevention of disinformation and hate speech content by social media platforms and a twenty-four window within which such content must be removed from their platforms. It also provides that they should bring their policies in line with the first two responsibilities.The Proclamation further vests the reporting and public awareness responsibilities on the compliance of social media platforms in the Ethiopian Broadcasting Authority—a body empowered by law to regulate broadcasting services. The Ethiopian Human Rights Commission (EHRC), Ethiopia’s National Human Rights Institution (NHRI), also has responsibilities on public awareness. But it is the Council of Ministers that’s responsible for implementing laws in Ethiopia that may give further guidance on the responsibilities of social media platforms and other private actors.In Nigeria, the legislative proposal, the Protection from Internet Falsehoods, Manipulation and Other Related Matters bill, is yet to become law. The bill seeks to regulate disinformation and coordinated inauthentic behaviour online. The law is similar to that of Singapore which has been criticised by the current United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression for the threats it poses to online expression and online rights in general.Major criticisms against these laws include how they are opaque and pose threats to online expression. For example, the Ethiopian law defines hate speech broadly and does not include the contextual factors that must be considered in categorising online speech as hateful. With respect to the Nigerian bill, there are no clear oversight, accountability or transparency systems in place to check the government's unlimited powers to decide what constitutes disinformation.The indirect regulatory laws are those used by governments through their telecommunications regulatory agencies to compel Internet Service Providers (ISPs) to block social media platforms. This type of regulation requires ISPs to block social media platforms based on public emergencies or national interests. What constitutes these emergencies or interests are vague and in many instances are examples of voices or platforms critical of government policies.In January 2021, the Ugandan government ordered ISPs to block Facebook, Twitter, WhatsApp, Signal and Fiber. The order was issued through the communications regulator. The order came a day after Facebook’s announcement that it will close pro-government accounts sharing disinformation.In June 2021, the Nigerian government ordered ISPs to block access to Twitter stating that the latter’s activities constituted threats to Nigeria’s corporate existence. However, there have been contrary views that the order was as a result of both remote and immediate causes. The remote cause was the role Twitter played in connecting and rallying publics during the #EndSARS protests against police brutality while the immediate cause was attributed to Twitter’s deletion of President Muhammadu Buhari’s tweet which referred to the country’s civil war, contained veiled threats of violence, and violated Twitter’s abusive policies.In May 2021, Ethiopia had just lifted the block on social media platforms in six locations in the country. Routine shutdowns like these have become a thing for African governments and this often occurs during elections or a major political development.On a closer look, the cross-cutting challenge posed by both forms of regulation is the lack of accountability and transparency especially on the part of governments on how they enforce these provisions. Social media platforms are also complicit as there is little or no information on the nature of pressure they face from these government actors.Alongside the mainstream debates on how to govern social media platforms, it is time to also consider wider forms of regulation especially on how they manifest outside Western systems and the threats such regulation poses to online expression.One solution that has been suggested but also severely criticised is the application of international human rights standards to social media regulation. This standard has been argued to be the most preferred because of its customary application across contexts. However, its biggest strength also seems to be its biggest weakness—how does this standard apply in local contexts given the complexity of governing online speech and the myriad of actors involved?In order to work towards effective solutions, we will need to re-imagine and re-purpose traditional governance roles of not only governments and social media platforms, but also ISPs, civil society, and NHRIs. For example, the unchecked powers of most governments to determine what constitutes online harms must be revisited to ensure that there are judicial reviews and human rights impact assessments (HRIAs) of proposed government social media bans.ISPs must also be encouraged to jump into the fray, choose human rights, and not to roll over each time governments make such problematic demands to block social media platforms. For example, they should begin to join other actors like the civil society and the academia to lobby for laws and policies that make judicial reviews and HRIAs requirements before entertaining governments request for blocking of platforms or even content.The application of international human rights standards to social media regulation is not where the work stops, but is where it begins. For a start, proximate actors involved in social media regulation like governments, social media platforms, private actors, local and international civil society bodies, and treaty-making bodies like the United Nations and the African Union, NHRIs must come up with a typology of harms as well as actors actively involved in such regulation. In order to ensure that these addresses the challenges posed by these kinds of regulation, the responsibilities of such actors must be anchored on international human rights standards but in such a way that these actors actively communicate and collaborate.Tomiwa Ilori is currently a Doctoral Researcher at the Centre for Human Rights, Faculty of Law, University of Pretoria. He also works as a Researcher for the Expression, Information and Digital Rights Unit of the Centre.Techdirt and EFF are collaborating on this Techdirt Greenhouse discussion. On October 6th from 9am to noon PT, we'll have many of this series' authors discussing and debating their pieces in front of a live virtual audience (register to attend here).

As we recently announced, we're celebrating 300 episodes of the Techdirt Podcast with a special live-streamed episode today, an hour from now, at 1pm PT/4pm ET. Original co-hosts Dennis Yang and Hersh Reddy are returning to join Mike for this discussion, and we're also (barring technical issues) allowing our Patreon backers to call in live with questions!Watch the live stream on YouTube »If you're not yet a backer but would like to call in, there's still time! Just back us at any level on Patreon and you'll gain access to a Patron-only post there, which contains the link to watch via our podcast recording platform and use the call-in feature.We're excited to celebrate this milestone with our listeners and supporters, and look forward to seeing you all there!

For years cable TV has been plagued by retrans feuds and carriage disputes that routinely end with users losing access to TV programming they pay for. Basically, broadcasters will demand a rate hike in new content negotiations, the cable TV provider will balk, and then each side blames the other for failing to strike a new agreement on time like reasonable adults. That repeatedly results in content being blacked out for months, without consumers ever getting a refund. After a few months, the two sides strike a new confidential deal, your bill goes up, and nobody much cares how that impacts the end user. Rinse, wash, repeat.And while the shift to streaming TV has improved a lot about cable TV in general, these annoying feuds have remained. The latest case in point: Comcast NBC Universal is demanding more money from Google for the 14+ channels currently on the company's YouTube TV live streaming platform. Google appears to be balking, resulting in NBC running a bunch of annoying banners on its channels warning about a looming blackout, and directing people to this website blaming Google for not wanting to pay more money for the same content:In a blog post, Google notes that negotiations are ongoing, but suggests that Comcast isn't being reasonable in negotiations:

The 2021 Google Software Engineering Manager Bundle has 12 courses to help you learn software development. You'll learn about Data Science, Python, C#, Java, and more. Two courses will help you prepare for the CISA and CISM certification exams. It's on sale for $40.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Over the last few weeks, the WSJ has run a series of posts generally called "The Facebook Files," which have exposed a variety of internal documents from Facebook that are somewhat embarrassing. I do think some of the reporting is overblown -- and, in rather typical fashion regarding the big news publications and their reporting on Facebook, presents everything in the worst possible light. For example, the report on how internal research showed that Instagram made teen girls feel bad about themselves downplays that the data actually shows a significantly higher percentage of teens indicated that Instagram made them feel better:But, of course, the WSJ's headline presents it very differently:None of this is to say that this is okay, or that Facebook shouldn't be trying to figure out ways to minimize people using the sites being made to feel worse about themselves. But the reporting decisions here do raise some questions.Another one of the articles highlights how Facebook has different rules for different users with regards to content moderation. And, again, on a first pass this sounds really damning:

Not everyone uses an ad-blocker. But most people do. And no matter how much online publications claim ad blocking is the same thing as stealing, it really isn't. If they're bent out of shape about it, it's because they assault users with ads, burying content behind a wall of uncurated virtual salesmen. If it bleeds, it leads, the old saying goes, but now it refers to readers' processing power and data allotments.Far too many online publications consider processing the check on the ad buy to be the end of their responsibility. But ad servers get hijacked. Other ad companies get purchased by ad pushers with more malleable morals. Everyone collects reams of data on every site visitor. The end user of sites seems to be the last concern for ad brokers and the people who sell to them, so it's no surprise more people are deploying ad blockers, seeing as readers of even supposedly-reputable sites have been hit with malware, spyware, and auto-playing video when just trying to access some content.Ads can be dangerous. They can compromise systems and hijack browsers. The general public definitely knows this. Enjoy this shade thrown at ad saturation and website design overcompensation:

I was writing something a while ago, and had reason to quote the famous aphorism “Computers are incredibly fast, accurate, and stupid; humans are incredibly slow, inaccurate, and smart.” I’ll bet you’ve heard a variation on that quote before, and probably have seen a meme or two with it. It’s usually attributed to Einstein.(wait, who’s Tom Asacker?)But when you’re writing a research paper, and you need to add the source citation into Zotero for bibliographic and reference management, you need the actual publication title and date, as well as the author. So I went looking.About 25 links and a Wiki-hole later, I stumbled over this article by Ben Shoemate, a web architect and developer who’d come across the same problem I had--in 2008.Ben had sought this quote as well, thinking that with tens of thousands of search results pointing to Einstein as the quote’s author, there must be a source somewhere.Even at NASA’s showcase at the conference called Supercomputing 2006, this quote was attributed to Einstein, and then later fact-checked. No one can find out who said it. The closest anyone had gotten was Ben finding a single page (page 691) of a screenshotted article that seemed to have it.Well, I was sitting in England, in a small room in Oxford to be precise, in lockdown, a short walk from the most extensive library on earth since the Library of Alexandria first smelled smoke. I had plenty of things better to do but a bee in my bonnet, nonetheless. I started trying to track down the source article Ben had mentioned; it was something from the Instrument Society of America. However, while I was a short walk from the Bodleian, the lockdown meant no one could go inside. Oddly, that turned out to be a boon for this little quest. Because most university libraries in the world right now are cooperating with each other to an extraordinary extent, I was able to talk the librarian at the Bod into calling whichever university would have the article I needed--the one surrounding page 691.It turned into a combination of Telephone and Who’s On First.